Tolar et al v. Bradley Arant Boult Cummings LLP et al

Filing 103

MEMORANDUM OPINION AND ORDER - For the reasons described above, the Court grants Marion Banks motions for summary judgment. The Court will enter judgment as a matter of law in favor of Marion Bank on Greg, Reid, and Andrew Tolars claims of third-party retaliation. Signed by Judge Madeline Hughes Haikala on 3/29/2019. (KEK)

FILED
2019 Mar-29 AM 10:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

GREG TOLAR, et al,

}
}
Plaintiffs,
}
}
v.
}
}
MARION BANK AND TRUST, CO., }
}
Defendant.
}

Case No.: 2:13-cv-00132-MHH

MEMORANDUM OPINION AND ORDER
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.
I.

STANDARD OF REVIEW

“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
1

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

2

F.3d 1136, 1138 (11th Cir. 2018). Accordingly, the Court presents the summary
judgment evidence in the light most favorable to the Tolars.
II.

SUMMARY JUDGMENT EVIDENCE

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
3

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). 1
0F

For the reasons described below, the Court will consider the challenged evidence
in resolving Marion Bank’s motions for summary judgment.
1

Marion Bank styled its objection as a motion to strike or, in the alternative, notice of objections
to inadmissible evidence. The Court construed Marion Bank’s motion to strike as an objection to
the admissibility of summary judgment evidence because motions to strike no longer are
appropriate. (Docs. 101, 102); see Fed. R. Civ. P. 56(c)(2) advisory committees note (2010
amendments) (“There is no need to make a separate motion to strike.”); Campbell v. Shinseki,
546 Fed. Appx. 874, 879 (11th Cir. 2013) (“The plain meaning of [amended Rule 56(c)(2)]
show[s] that objecting to the admissibility of evidence supporting a summary judgment motion is
now a part of summary judgment procedure, rather than a separate motion to be handled
preliminarily . . . .”).
4

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
5

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

6

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. 787, 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

7

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
8

declaration relevant for the same reasons it found Ms. Youngblood’s testimony in
her deposition and affidavit from her underlying Title VII case relevant. 2
1F

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. 7817, p. 2, ¶ 2). 3 Ms. Youngblood was Mr. Taylor’s personal assistant. (Doc. 91-3,
2F

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
2

Because context is important to a discussion of the bank’s last objection, the Court addresses
that objection below.
3

Mr. Taylor still owns the bank and serves as its CEO. (Doc. 78-17, p. 2, ¶ 2). Since October
2017, Mr. Nichols has served as the bank’s chief operating officer. (Doc. 78-16, p. 2, ¶ 2).
9

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.
10

(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

11

estate practice. (Doc. 78-1, pp. 8, 10, tr. pp. 27, 33). Greg Tolar also served as a
part-time municipal judge in Selma from 1998 to 2004. (Doc. 78-1, p. 10, tr. p.
35).
Greg’s relationship with Marion Bank began in 2004 when realtors Sammy
Rinehart and Kay Beckett began referring real estate closings to Greg. (Doc. 78-1,
p. 27, tr. pp. 102-03; Doc. 78-7, p. 18). 4 After Greg moved his law office from
3F

Selma to Marion in 2005, Greg began receiving legal work directly from Marion
Bank. (Doc. 78-1, pp. 28, 32, tr. pp. 108, 125). Mr. Taylor approached Greg
several times to ask if he would be interested in conducting all of Marion Bank’s
legal work, but Greg declined. (Doc. 78-1, pp. 28-29, tr. pp. 108-10). Greg’s work
for Marion Bank during this time period consisted primarily of real estate closings,
foreclosures, and bankruptcy proceedings. (Doc. 78-1, p. 29 tr. p. 111; Doc. 78-10,
p. 18).
• Greg Tolar’s Defaulted Loans from Marion Bank
On February 1, 2008, before Marion Bank hired Ms. Youngblood, the bank
assumed an unsecured $98,416.50 line of credit that Greg Tolar had with Regions
Bank. (Doc. 78-11, pp. 32-33; Doc. 78-16, pp. 7-8, ¶ 18). The line of credit had a
maturity date of January 31, 2009. (Doc. 78-11, pp. 32-33; Doc. 78-16, pp. 7-8, ¶
18). Greg Tolar did not pay the loan by the maturity date. (Doc. 78-16, pp. 7-8, ¶
4

Because all three of the plaintiffs are Mr. Tolar, the Court often refers to each plaintiff by his
first name.
12

18; Doc. 78-1, p. 19, tr. pp. 69, 72). In March 2009, Marion Bank agreed to extend
the maturity date of the loan to January 30, 2010 in exchange for payment of a
portion of the interest due on the loan. (Doc. 78-11, pp. 34-36; Doc. 78-16, pp. 78, ¶ 18). Mr. Nichols testified that the bank agreed to provide the extension “for
less than 50 percent of the interest, which is outside of our policy, and . . . I had to
get permission from the loan committee to do so.” (Doc. 78-3, p. 44, tr. p. 171).
Greg failed to repay the loan by January 30, 2010. (Doc. 78-16, pp. 7-8, ¶ 18; Doc.
78-1, p. 19, tr. pp. 69, 72).
On March 8, 2008, a month after Ms. Youngblood went to work for Marion
Bank, Mr. Livingston obtained an unsecured $24,787.28 loan from the bank.
(Doc. 78-11, pp. 44-47; Doc. 78-16, p. 8, ¶ 19). Greg co-signed the loan. (Doc.
78-11, p. 47; Doc. 78-7, p. 14). Mr. Livingston defaulted on the loan. (Doc. 7816, p. 8, ¶ 19; Doc. 78-7, pp. 13-16).
• Greg’s relationship with
Youngblood’s Termination

Marion

Bank

Following

Ms.

In September 2008, two days after Marion Bank fired Ms. Youngblood,
Greg and his wife, Lori Tolar, visited the bank and spoke with the chairman of the
bank’s board, Randy Richardson. (Doc. 78-1, pp. 35-36, tr. pp. 136-37; Doc. 78-7,
pp. 53-55). Because Mr. Richardson was the board chairman, Greg and Lori felt
that Mr. Richardson was their only option because everyone else was subordinate
to Mr. Taylor. (Doc. 78-7, p. 57). Greg and Lori complained that Mr. Taylor had
13

sexually harassed their daughter and asked Mr. Richardson to have the bank
investigate their daughter’s allegations against Mr. Taylor. (Doc. 78-1, p. 36, tr. p.
137; Doc. 78-7, pp. 53-55). Greg and Lori also asked the bank to place their
daughter on administrative paid leave and keep her insurance in force during the
investigation. (Doc. 78-1, p. 36, tr. p. 137; Doc. 78-7, pp. 54-55). Greg informed
Mr. Richardson that Ms. Youngblood would be filing an EEOC charge. (Doc. 781, p. 37, tr. p. 142; Doc. 78-7, p. 56). 5
4F

During the meeting, Mr. Richardson asked about the legal work that Greg
was doing on behalf of Marion Bank. (Doc. 78-7, pp. 55-56). Greg responded that
he was in the process of completing three foreclosures. (Doc. 78-7, p. 56). Greg
asked Mr. Richardson if Marion Bank wanted Greg to finish the foreclosures.
(Doc. 78-3, p. 21, tr. pp. 79-80). At the end of their meeting, Mr. Richardson
informed Greg and Lori that he would get back to them regarding their daughter’s
complaints and the three pending foreclosures. (Doc. 78-1, p. 36, tr. p. 137; Doc.
78-7, pp. 55-57).
5

In his deposition in his daughter’s underlying Title VII action, Greg testified that he filed the
EEOC charge on behalf of his daughter and that he told Mr. Richardson that “we would be filing
an EEOC charge on her behalf.” (Doc. 78-7, pp. 17, 56). He also testified that he first noticed
he stopped receiving work from Marion Bank “within a month . . . of September when Ragan
filed her EEOC charges.” (Doc. 78-7, p. 21). In his deposition taken in this case, Greg denied
telling Mr. Richardson that he would be representing his daughter. (Doc. 78-1, p. 37, tr. p. 142)
(“We didn’t talk about anything about me assisting her. We just told him that an EEOC charge
would be forthcoming … [w]e didn’t say who it was coming from.”). In her amended
declaration, Ms. Youngblood stated that she filed her EEOC charge on her own, without
assistance from her father. (Doc. 95-1, p. 7, ¶ 25). For purposes of the bank’s summary
judgment motions in this case, the Court accepts the version of these facts that favors Greg.
14

The next day, Mr. Richardson called Greg and explained that Marion Bank
would not investigate Ms. Youngblood’s allegations of sexual harassment against
Mr. Taylor because the bank believed Mr. Taylor’s version of the events. (Doc.
78-1, p. 36, tr. pp. 137-38; Doc. 78-7, pp. 57-59). Mr. Richardson instructed Greg
to complete the three foreclosures that he was processing on behalf of the bank,
and Mr. Richardson told Greg that his contact at the bank for the foreclosures
would be Mr. Nichols, not Mr. Taylor. (Doc. 78-7, p. 58; Doc. 78-3, p. 21, tr. p.
79). At no point during the conversations did Mr. Richardson indicate that Marion
Bank would no longer refer legal work to Greg because his daughter’s allegations
of sexual harassment constituted a conflict of interest. See Doc. 78-1, pp. 35-37, tr.
pp. 136-38, 142; Doc. 78-7, pp. 53-57; Doc. 91-16, pp. 57-59. Prior to these
conversations, Greg and Mr. Richardson had not discussed Ms. Youngblood except
on a few occasions when Mr. Richardson praised Ms. Youngblood’s work. (Doc.
78-7, pp. 59-60).
A few days later, Mr. Nichols met with Greg in Greg’s office to discuss one
of Greg’s three remaining foreclosures. (Doc. 78-1, p. 36, tr. pp. 138-39). During
the meeting, Mr. Nichols expressed his disbelief in Ms. Youngblood’s allegations.
(Doc. 78-1, p. 36, tr. p. 139). Greg changed the topic and returned the discussion
to the foreclosure that Greg was handling. (Doc. 78-1, p. 36, tr. p. 139). Greg and

15

Mr. Nichols did not discuss Ms. Youngblood’s allegations again. (Doc. 78-1, p.
36, tr. p. 139).
• Marion Bank’s Termination of its Relationship with Greg
Shortly after Greg and Lori met with Mr. Richardson, the Bank stopped
referring legal work to Greg. (Doc. 78-3, pp. 19, 38, tr. pp. 69-70, 148; Doc. 78-7,
p. 21; see Doc. 78-10, p. 21). Mr. Nichols testified that Marion Bank stopped
referring legal work to Greg because “he was adversarial to [the bank] in another
lawsuit.” (Doc. 78-3, p. 21, tr. p. 78). Mr. Nichols also cited performance issues
with Greg. (Doc. 78-3, p. 21, tr. p. 78). Marion Bank did not warn Greg in
advance or otherwise indicate that it would no longer refer legal work to him.
(Doc. 78-1, pp. 37, 40 tr. pp. 143, 154-55). Until Marion Bank ended its business
relationship with Greg, the bank did not inform Greg that he was not performing
up to the bank’s standard. (Doc. 78-3, pp. 74-75, tr. pp. 292-93).
In October 2008, shortly after Marion Bank stopped referring legal work to
Greg, the board created and the bank adopted a list of attorneys approved to
conduct legal work on behalf of the bank. (Doc. 78-3, pp. 38-39, tr. pp. 146-49).
Greg was not included on the list. (Doc. 78-11, p. 25). Before Marion Bank
adopted the list of approved attorneys, it would assign its legal work to a pool of
five attorneys, including Greg. (Doc. 78-3, p. 17, tr. p. 62). Without a specific

16

procedure or policy in place, Mr. Taylor chose the attorney that the bank would
use. (Doc. 78-3, pp. 17-19, tr. pp. 62, 68-69).
By the time Greg and Marion Bank parted ways in the fall of 2008, the bank
had paid Greg about $31,000 since 2005; the bank was paying Greg fees of
approximately $3,500 per month on average. (Doc. 78-1, p. 39, tr. p. 151; see Doc.
78-10, pp. 16-21). In 2009, Greg moved his law practice to Prattville, Alabama
due to the loss of income from the bank. (Doc. 78-1, p. 46, tr. p. 178). Greg
estimated that he was grossing about $160,000 per year when he left Marion.
(Doc. 78-1, p. 12, tr. p. 43).
• Marion Bank’s Efforts to Collect on Defaulted Loans
On July 1, 2009, Marion Bank initiated a collection lawsuit in the Circuit
Court of Perry County against Mr. Livingston and Greg for the defaulted
$24,787.28 loan for which Greg had co-signed. (Doc. 78-11, pp. 42-43). As to
Greg’s $98,416.50 line of credit that was in default, after unsuccessfully trying to
reach Greg by phone on February 15 and 18, 2010, (Doc. 78-3, pp. 47-48, tr. pp.
184-85), Mr. Nichols emailed him on February 26, 2010:
i [sic] have been trying to reach you regarding the above mentioned
loan. the loan was due on jan. 30th. please let us know your
intentions for repayment of this loan. thank you.
(Doc. 78-11, p. 54). Two days later, Greg responded: “preston; wanted to let you
know i [sic] received your email.” (Doc. 78-11, p. 26). On March 15, 2010,

17

Marion Bank filed a collection lawsuit in the Circuit Court of Perry County against
Greg for the $98,416.50 loan. (Doc. 78-10, pp. 6-7). Greg does not dispute the
defaulted debt and does not believe that Marion Bank behaved improperly in filing
a collection lawsuit. (Doc. 78-1, p. 19, tr. p. 72).
On September 9, 2010, the Perry County Circuit Court entered judgment in
Marion Bank’s favor against Greg and Mr. Livingston, and ordered Greg and Mr.
Livingston to pay the bank $28,687.67 in principal and accrued interest and
$4,303.15 in attorney fees. (Doc. 78-11, pp. 51-52). The same month, the Perry
County Circuit Court entered a $111,382.95 judgment in favor of Marion Bank and
against Greg on his $98,416.50 debt. (Doc. 78-7, pp. 12-15).
After obtaining judgments on both loans, Marion Bank pursued
garnishments against Greg’s and Mr. Livingston’s wages. (Doc. 78-16, pp. 9-10, ¶
23). On October 13, 2010, the Perry County Circuit Clerk issued a garnishment
against Mr. Livingston, naming Pepsi-Cola Bottle Co. of Selma, Mr. Livingston’s
employer at the time, as garnishee. (Doc. 78-16, pp. 9-10, ¶ 23; p. 149). The same
day, the Perry County Circuit Clerk issued a garnishment against Greg, naming the
Tolar Law Firm, LLC as garnishee. (Doc. 78-16, pp. 9-10, ¶ 23; pp. 151-52).
Unbeknownst to Marion Bank, Greg had dissolved The Tolar Law Firm, LLC on
October 15, 2009. (Doc. 78-16, pp. 150, 153; pp. 9-10, ¶ 23). On November 16,
2010, following the failed execution of garnishment against Greg’s wages, Greg
18

testified through post-judgment interrogatories that he had no assets to pay Marion
Bank’s judgment against him. (Doc. 78-18, pp. 71-75).
As of February 2012, Greg had not satisfied the judgment against him.
(Doc. 78-18, p. 4, ¶¶ 11-12). Marion Bank’s efforts to collect lay dormant until
February 8, 2012, when Bradley Arant Boult Cummings LLP made an appearance
on behalf of Marion Bank in the collection action against Greg. (Doc. 78-18, p. 5,
¶ 15). At the time, lawyers in the Bradley Arant firm were defending Marion Bank
and Mr. Taylor in Ms. Youngblood’s Title VII action against the bank and Mr.
Taylor. Bradley Arant did not represent Marion Bank when the bank filed the
collection actions against Greg and Mr. Livingston, and Bradley Arant did not
represent the bank when the bank obtained judgments in the two collection actions.
(Doc. 78-18, p. 4, ¶ 11).
• The Fraudulent Transfer Action
When Greg defaulted on his loans with Marion Bank, Greg and Andrew
were trustees and income beneficiaries of an irrevocable trust formed by their
father, James Tolar. (Doc. 78-12, pp. 86-96). The controlling trust agreement
provided that “[t]he entire net income from the Trust property shall be available to
MARTHA W. TOLAR, wife of the Grantor, for as long as she shall live.” (Doc.
78-12, p. 89, ¶ 1). The trust agreement established that during Martha Tolar’s
lifetime, “no income derived from this trust shall be paid to Grantor’s children or
19

grandchildren by the Trustees unless said Trustees are instructed to do so, in
writing, by the said Martha W. Tolar.” (Doc. 78-12, p. 89, ¶ 3). Upon Martha
Tolar’s death, the income from the trust was to be distributed to Greg, Andrew, and
James Tolar’s two other children.

(Doc. 78-12, pp. 89-90, ¶ 4).

The trust

agreement contained the following spendthrift provision:
The interest of any beneficiary, primary or otherwise, in the corpus or
income of this trust shall not be subject to assignment, alienation,
pledge, attachment, or claims of creditors, and shall not otherwise be
voluntarily or involuntarily alienated or encumbered by such
beneficiary.
(Doc. 78-12, p. 90). The trust agreement provided that the trust “shall remain in
full force and effect until all of grantor’s children are deceased at which time it will
terminate” and “the entire corpus of this Trust … shall be divided and distributed
equally among Grantor’s grandchildren.” (Doc. 78-12, p. 90, ¶ 5).
On February 26, 2010, Greg, acting as a trustee and as the Tolar family
attorney, executed an addendum to the Tolar Family Trust. (Doc. 78-11, pp. 8487). Greg made many changes to the trust agreement through the addendum.
First, Greg restructured the trustees. The addendum designated Greg, Andrew, and
their brother, James M. Tolar, as trustees, and it eliminated the provision that
allowed the grandchildren of the trustees to become trustees upon meeting certain
conditions. (Doc. 78-11, p. 84, ¶¶ 1-2). The addendum also designated Reid as a
successor trustee in the event that none of the trustees were able to serve. (Doc.

20

78-11, pp. 84-85, ¶ 3).

Second, Greg restructured the beneficiaries.

The

addendum replaced all references to Martha W. Tolar as a beneficiary with the
names of James M. Tolar, Andrew F. Tolar, Reid G. Tolar, and Dean R. Tolar and
divided the corpus of the trust among them at 26.67%, 26.67%, 26.66%, and 20%,
respectively.

(Doc. 78-11, p. 85, ¶ 4.a-b).

The addendum also altered the

provision requiring that the trust remain in effect until certain conditions were met
by granting the new trustees the power to dissolve the trust at any time. (Doc. 7811, p. 85, ¶ 4.f). The addendum did not remove the spendthrift provision. See
Doc. 78-11, pp. 84-87.
On December 25, 2011, Greg’s father, the grantor under the trust agreement,
died. (Doc. 78-12, p. 57, ¶ 6). In January 2012, Marion Bank learned that Greg
had executed an addendum to the family trust. (Doc. 78-3, p. 50, tr. p. 194).
Marion Bank contacted Chris Glenos, a partner at Bradley Arant, to examine
whether the bank had collection options relating to the trust addendum. (Doc. 7818, p. 4, ¶ 11). Mr. Glenos testified that he was not involved in Ms. Youngblood’s
Title VII lawsuit and “did not review any depositions, discovery, or pleadings from
that action as part of my representation of Marion Bank or at any other time.”
(Doc. 78-18, p. 4, ¶ 11).
On February 9, 2012, after Greg learned of Bradley Arant’s appearance in
the Marion Bank’s collection action against him, Greg emailed Mr. Glenos and
21

Josh Johnson, an associate with Bradley Arant at the time, stating that he is
“willing to try to settle” the collection matter and asked if the bank was “able to
accept monthly payments or if they are looking for a lump sum settlement.” (Doc.
78-11, p. 55). The following day, Mr. Glenos replied to Greg and informed Greg
that Marion Bank had filed a complaint under the Alabama Fraudulent Transfer
Act against the James A. Tolar, Jr. Family Trust and Reid Tolar and had moved for
a temporary restraining order. (Doc. 78-11, p. 55; Doc. 78-1, p. 41, tr. p. 158).
Mr. Glenos requested that Greg advise whether the trustees and Reid would
consent to the requested restraining order in lieu of an emergency hearing. (Doc.
78-11, p. 55). Mr. Glenos explained the nature of the claim:
Also, please note that the bank is not seeking to restrain or enjoin the
sale of any Trust assets to third parties – only the payment or
subsequent transfer of any distributions by the Tolar Family Trust
attributable to your beneficial interest in the Trust that were ostensibly
assigned to Reid Tolar pursuant to the February 2010 Addendum to
the Trust Agreement.
(Doc. 78-11, p. 55). Mr. Glenos concluded his email by addressing Greg’s inquiry
regarding settlement of the collection matter: “You are welcome to give me a call
if you have some proposal in mind for the payment of the bank’s final judgment
against you.” (Doc. 78-11, p. 55).
In its fraudulent transfer claim, Marion Bank alleged that Greg had
restructured the trust and assigned his beneficial interest to his son to frustrate the
bank’s ability to collect the outstanding judgment against Greg. (Doc. 78-18, pp,
22

32-37). Marion Bank sued Reid individually and Greg and Andrew in their roles
as trustees. (Doc. 78-18, p. 32). On February 13, 2012, three days after Marion
Bank filed the fraudulent transfer action and moved for a temporary restraining
order, the Perry County Circuit Clerk issued a garnishment against Greg, naming
Reid Tolar and the family trust as garnishees. (Doc. 78-18, pp. 79-80).
On March 4, 2012, Greg emailed Mr. Glenos and Mr. Johnson informing
them that he had filed a response to their motion for a temporary restraining order.
(Doc. 78-12, p. 110). Greg also offered to settle the outstanding judgment against
him for $40,000. (Doc. 78-12, p. 110). Neither Mr. Johnson nor Mr. Glenos
responded to Greg’s email offer. (Doc. 78-12, p. 119). On March 7, 2012, Greg
emailed Mr. Johnson and Mr. Glenos again, making the same offer. (Doc. 78-12,
p. 119).
On March 5, 2012, Marion Bank obtained a temporary restraining order that
enjoined Reid and the trust from making distributions to Greg or Reid pursuant to
the trust addendum. (Doc. 78-18, pp. 115-116). Following the entry of the TRO,
on March 9, 2012, Mr. Johnson emailed Greg with a response to his offer to settle
the matter for $40,000. (Doc. 78-18, p. 130). Mr. Johnson stated that Marion
Bank was not in a position to engage in settlement discussions or make a
counteroffer without conducting discovery. (Doc. 78-18, p. 130). Mr. Johnson
proposed that the parties move to continue the preliminary injunction hearing set
23

for March 20, 2012 and to extend the restraining order until the hearing to allow
the parties to conduct discovery. (Doc. 78-18, p. 130). Greg consented to Mr.
Johnson’s proposal, and the parties submitted a motion to this effect on March 14,
2012. (Doc. 78-18, p. 120). The following day, the circuit court granted the
parties’ request and extended the restraining order until the parties completed
discovery. (Doc. 78-18, p. 126).
When Marion Bank filed its fraudulent transfer action against Reid and the
trust, Reid was a third-year law student at Birmingham Law School and was
planning to sit for the Alabama bar exam. (Doc. 78-2, pp. 4, 12, tr. pp. 12, 43).
Because Reid was included as a defendant in the fraudulent transfer action, he had
to report the lawsuit to the state bar’s Character and Fitness Committee. Reid
ultimately sat for and passed the Alabama bar after graduating in May of 2012.
Reid has been working at Tolar & Tolar since September of 2012. (Doc. 78-2, pp.
4, 10, tr. pp. 12, 35). Reid has not had any bar complaints since becoming a
lawyer. (Doc. 78-2, p. 12, tr. p. 41).
• Greg’s Chapter 13 Bankruptcy Petition
On April 19, 2012, Greg filed for Chapter 13 bankruptcy in the United States
Bankruptcy Court for the Middle District of Alabama. (Doc. 78-19, pp. 3-50; Doc.
78-1, p. 17, tr. p. 61). At the time, Sabrina McKinney was a senior staff attorney
for the Standing Chapter 13 Trustee in the Middle District of Alabama. (Doc. 9124

14, p. 2, ¶ 3). Before he filed his bankruptcy petition, Greg let Ms. McKinney and
the Standing Chapter 13 Trustee know that he would be filing for Chapter 13
protection. (Doc. 91-14, p. 3, ¶ 5). Greg informed Ms. McKinney that he would
be filing a “100%” Chapter 13 plan to repay the Marion Bank debt in full. (Doc.
91-14, p. 3, ¶ 5).
After Greg filed for bankruptcy, but before he submitted his Chapter 13
plan, Mr. Johnson contacted Ms. McKinney. (Doc. 78-18, pp. 7-8, ¶ 23; Doc. 9114, pp. 3-4, ¶¶ 6-7). Mr. Johnson proposed that the Trustee’s office retain Bradley
Arant to represent the Trustee and indicated that he was under the impression that
Greg did not intend to satisfy his debt. (Doc. 91-14, pp. 3-4, ¶ 6). Ms. McKinney
testified that the law firm’s call and request were “out of the ordinary” because she
“had never had a law firm solicit [her] to represent the Trustee as a client in an
individual preference action.” (Doc. 91-14, p. 4, ¶ 7). Ms. McKinney was unsure
how Mr. Johnson was aware of Greg’s bankruptcy petition as his bankruptcy
petition “was so new that it had not been entered into the trustee’s computer
system.” (Doc. 91-14, p. 4, ¶ 7). She also was unsure why Mr. Johnson believed
that Greg did not intend to repay his debt because Greg had not filed his
bankruptcy plan yet. (Doc. 91-14, p. 4, ¶ 7). 6
5F

6

Marion Bank argues that Ms. McKinney’s declaration constitutes inadmissible opinion
evidence and lacks foundation because it contradicts Marion Bank’s expert’s testimony. (Doc.
100, pp. 6-7). Marion Bank takes issue with Ms. McKinney’s characterization of Marion Bank’s
25

As to why Bradley Arant contacted the Bankruptcy Trustee’s office, Mr.
Glenos testified:
When a debtor files a Chapter 7 or 13 bankruptcy case, any pending
fraudulent transfer lawsuits relating to the debtor are automatically
stayed and become subject to the oversight and/or control of the
bankruptcy trustee. For this reason, after Greg Tolar filed for
bankruptcy, our firm contacted the Chapter 13 bankruptcy trustee’s
office (Curtis Reding) regarding the pending fraudulent transfer claim.
In my experience, it is customary for creditors’ counsel to contact the
trustee to apprise him or her of such pending lawsuits under the
circumstances. The purpose of our communication with the Chapter
13 trustee was to make him aware of the existence of the pending
fraudulent transfer lawsuit filed by Marion Bank, to inquire how he
wished to proceed with respect to the lawsuit, and to offer assistance
since our firm was familiar with the facts and underlying documents.
(Doc. 78-18, pp. 7-8, ¶ 23).
On May 3, 2012, Greg filed his Chapter 13 plan. (Doc. 78-19, pp. 52-55).
Under the plan, Greg proposed to pay 100% of the bank’s collection judgment over
a period of 54 months. (Doc. 78-19, p. 52, ¶ 1).

litigation strategy in the fraudulent transfer action against Greg, Reid, and Andrew Tolar, which
is described in detail below, as protracted, aggressive, and “out of the ordinary” (Doc. 100, p. 7)
(citing Doc. 91-14, pp. 4-5, ¶¶ 7, 9). Ms. McKinney does not provide her testimony based solely
on her extensive bankruptcy experience (which Marion Bank cannot challenge simply because it
contradicts the testimony of its experts). Instead, Ms. McKinney also bases her testimony on a
phone call with Bradley Arant. (Doc. 91-14, pp. 3-4, ¶¶ 6-8). Given Ms. McKinney’s position
as a staff attorney for the Standing Chapter 13 Trustee and her interactions with Marion Bank’s
legal representatives, Ms. McKinney has personal knowledge on which to base her assessment
that the law firm’s call and request were “out of the ordinary” because she “had never had a law
firm solicit [her] to represent the Trustee as a client in an individual preference action.” (Doc.
91-14, p. 2, ¶ 3). To the extent that Marion Bank disputes the accuracy of Ms. McKinney’s
characterization of Bradley Arant’s conduct as unusual, as previously explained, the Court
cannot weigh evidence or assess credibility at the summary judgment stage.
26

On August 1, 2012, Marion Bank objected to Greg’s proposed bankruptcy
plan on two grounds. (Doc. 78-19, pp. 57-111). First, it accused Greg of not filing
his bankruptcy petition in good faith. (Doc. 78-19, p. 57). Marion Bank was the
only creditor, and it characterized Greg’s bankruptcy petition as “the latest in a
long series of evasive tactics to avoid paying the Judgments owed to [Marion
Bank].” (Doc. 78-19, p. 64, ¶ 19). Second, Marion Bank argued that Greg’s plan
was not in the bank’s best interest because the plan did not account for the lost
time value of money. (Doc. 78-19, p. 65, ¶ 21). Marion Bank’s 55-page objection
consists of nine pages explaining the basis for the bank’s objections and dozens of
pages of attachments. See Doc. 78-19, pp. 57-111. Ms. McKinney stated that
objections typically are 3-4 pages. (Doc. 91-14, pp. 4-5, ¶ 9). Mr. Nichols could
not recall another time that Marion Bank objected to a plan proposing repayment
of 100% of the debt owed. (Doc. 78-19, p. 59, tr. pp. 231-32).
On August 17, 2012, Greg filed an adversary proceeding in the bankruptcy
court, alleging that Marion Bank violated 11 U.S.C. § 362(a)’s automatic stay by
not releasing the March 5, 2012 temporary restraining in the fraudulent transfer
action after Greg filed for bankruptcy. (Doc. 78-19, pp. 113-55).
On August 30, 2012, Marion Bank moved for a temporary restraining order
and preliminary injunction in the United States Bankruptcy Court for the Middle
District of Alabama. (Doc. 78-20, pp. 16-64). Marion Bank sought to enjoin Reid
27

and the trust from making distributions that were attributable to Greg or Reid’s
beneficial interest in the trust and from transferring any assets received as
distributions from the trust that were attributable to Reid or Greg’s beneficial
interest. (Doc. 78-20, pp. 16-64; Doc. 78-18, p. 9, ¶ 29).
On September 5, 2012, Marion Bank filed a proof of claim in the amount of
$144,430.40 for the judgment against Greg. (Doc. 78-20, pp. 66-68). Marion
Bank withdrew the proof of claim and refiled it on September 11, 2012 because the
original filing omitted required attachments. (Doc. 78-20, pp. 66-76; Doc. 78-18,
pp. 9-10, ¶ 30). Also on September 11, 2012, Marion Bank filed a proof of claim
in Greg’s bankruptcy proceeding in the amount of $25,650.45 for the judgment
against Mr. Livingston and Greg. (Doc. 78-20, pp. 78-86).
On September 17, 2012, the United States Bankruptcy Court of the Middle
District of Alabama granted Marion Bank’s motion for injunctive relief and
preliminarily enjoined the family trust from making distributions to Greg, Reid, or
any other person to their benefit. (Doc. 78-20, pp. 88-89). The Bankruptcy Court
held that the trust could not make distributions attributable to the 26.7% beneficial
interest assigned to Reid under the addendum. (Doc. 78-20, pp. 88-89).
• Greg’s Satisfaction of the Outstanding Judgments
The following day, on September 18, 2012, Greg offered to settle the
fraudulent transfer claim and bankruptcy dispute for the full amount submitted by
28

Marion Bank in its proofs of claims. (Doc. 78-20, pp. 91-93). On November 1,
2012, bankruptcy court dismissed the case pursuant to the parties’ agreement. The
agreement provided that Marion Bank would consent to withdrawal of
$170,080.85 from the Tolar trust to satisfy the judgments. (Doc. 78-12, pp. 62-64).
On December 5, 2012, the parties in the fraudulent transfer action filed a joint
stipulation of dismissal of Marion Bank’s fraudulent transfer claim. (Doc. 78-20,
pp. 99-100).
This lawsuit followed. The Court previously dismissed the Tolars’ claims
against Bradley Arant and Mr. Taylor. (Docs. 33, 40-41). Only the Tolars’ claims
against Marion Bank remain.
III.

DISCUSSION

Title VII prohibits employers from retaliating against an employee “because
he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge . . . under [Title VII].” 42 U.S.C. § 2000e-3(a).
The statute permits “a person claiming to be aggrieved” to file a charge with the
EEOC alleging that the employer retaliated, and, if the EEOC declines to sue the
employer, then the statute permits a civil action to “be brought … by the person
claiming to be aggrieved … by the alleged unlawful employment practice.” 42
U.S.C. § 2000e-5(b), (f)(1).

29

The United States Supreme Court has held that Title VII’s anti-retaliation
provision supplies broad protection from retaliation, including protection from
third-party reprisals. Burlington Northern & Santa Fe Ry., Co. v. White, 548 U.S.
53, 67 (2006); Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173-75 (2011).
This is so because reprisals against individuals close to victims of conduct that
Title VII prohibits may chill a victim’s willingness to come forward. Under a
third-party retaliation theory, a plaintiff must demonstrate that the defendant
subjected him to adverse treatment because of the plaintiff’s close association with
someone who engaged in protected activity. See Doc. 25.
The McDonnell Douglas burden-shifting analysis applies to retaliation
claims based on circumstantial evidence. Furcron v. Mail Centers Plus, LLC, 843
F.3d 1295, 1310 (11th Cir. 2016). Under this framework, a plaintiff must present
evidence to establish a prima facie case of retaliation, which “creates a rebuttable
presumption that the employer acted illegally.” Underwood v. Perry, 431 F.3d
788, 794 (11th Cir. 2005). If a plaintiff establishes a prima facie case, then the
employer “may come forward with legitimate reasons” for its conduct to negate the
inference of retaliation. If the employer carries its burden, then the plaintiff must
“demonstrate, by a preponderance of the evidence, that the employer’s reasons are
pretextual.” Furcron, 843 F.3d at 1310-11; see also Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997) (The court “must, in view of all the
30

evidence, determine whether the plaintiff has cast sufficient doubt on the
defendant’s proffered [nonretaliatory] reasons to permit a reasonable fact finder to
conclude that the employer’s proffered ‘legitimate reasons were not what actually
motivated its conduct.’”) (quoting Cooper–Houston v. Southern Ry. Co., 37 F.3d
603, 605 (11th Cir. 1994)).
Though it is one tool for examining circumstantial evidence of retaliatory
intent, the McDonnell Douglas framework “is not, and never was intended to be,
the sine qua non for a plaintiff to survive a summary judgment motion.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); see also Flowers v.
Troup Cty., Ga., School Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). A plaintiff’s
retaliation claim may survive if the record, viewed in the light most favorable to
the plaintiff, “demonstrate[s] a ‘convincing mosaic’ of circumstantial evidence that
warrants an inference” of retaliation. Lewis v. City of Union City, --- F.3d ---, 2019
WL 1285058, * 3, n. 6 (11th Cir. Mar. 21, 2019) (en banc) (citing LockheedMartin Corp., 644 F.3d at 1328); see also Calvert v. Doe, 648 Fed. Appx. 925, 929
(11th. Cir. 2016) (applying the “convincing mosaic” standard to a Title VII
retaliation claim). 7 Ultimately, retaliatory intent is the crux of the matter, and
6F

“[w]hatever form it takes, if the circumstantial evidence is sufficient to raise ‘a
7

Calvert is not binding authority, but the Court cites the decision for its persuasive value. See
United States v. Rodrigues-Lopez, 363 F.3d 1134, 1138 n.4 (11th Cir. 2004) (“While
unpublished opinions are not binding on this court, they may nonetheless be cited as persuasive
authority.”); see also 11th Cir. Rule 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
31

reasonable inference that the employer [retaliated] against the plaintiff, summary
judgment is improper.’” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249,
1256 (11th Cir. 2012) (quoting Lockheed-Martin Corp., 644 F.3d at 1328); see
also Flowers, 803 F.3d at 1336 (analysis of “whether the plaintiff has ‘create[d] a
triable issue concerning the employer’s discriminatory intent’” is the “critical
decision” in Title VII employment discrimination claims) (quoting LockheedMartin Corp., 644 F.3d at 1328).
A. Standing
1. Greg and Andrew are Persons Aggrieved.
Marion Bank argues that Greg and Andrew Tolar lack standing to base a
third-party retaliation claim on the bank’s state court fraudulent transfer action
because the action named Greg and Andrew only in their capacities as trustees, and
Title VII does not extend to entities like a trust. Title VII, the bank argues,
provides a cause of action to a “person” claiming to be aggrieved. (Doc. 85, pp.
24-25; Doc. 86, pp. 29-30) (emphasis in the bank’s briefs). Marion Bank relies on
Crawford v. George & Lynch, Inc. for the proposition that Title VII does not
extend to non-person entities like a trust. 2012 WL 2674546, *3 (D.Del July 5,
2012). The Court already has rejected this argument. (Doc. 25, pp. 26-28; Doc.
33, pp. 1-2). As Judge Ott explained, the plaintiff in Crawford was a limited
liability company, Greg and Andrew Tolar are “natural persons,” and “[t]he instant

32

case, therefore, presents no occasion to weigh in on Crawford insofar as its denial
of standing rested either upon the fact that [the plaintiff] was an artificial entity or
upon the particular nature of the relationship between such an entity and the
complaining employee.” (Doc. 25, p. 27).
To the extent that Marion Bank argues that Greg and Andrew cannot base
their retaliation claims on conduct directed towards the trust, the Court finds the
argument unpersuasive. The fraudulent transfer action, though styled as an action
against the trust, was designed to secure for the bank payment of Greg’s debts on
his and Mr. Livingston’s defaulted lines of credit. Procedurally, the only way the
bank could gain access to funds to which Greg was entitled under the trust
addendum was to sue Greg and Andrew in their capacities as trustees. “Title VII's
antiretaliation provision prohibits any employer action that ‘well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination[]’” and “must be construed to cover a broad range of employer
conduct.” Thompson, 562 U.S. at 173-75 (quoting Burlington, 548 U.S. at 67).
Marion Bank’s alleged retaliatory conduct, taken against the trust but directed at
Greg and Andrew, falls within the broad range of conduct that Title VII covers. 8
7F

8

There is no doubt that the bank took legal action to prevent disbursements from the trust to
Greg or Reid or anyone else for Greg or Reid’s benefit as a means of accessing, figuratively,
Greg’s wallet. Greg was the target of the bank’s conduct, and Andrew and Reid were caught in
the mix.
33

2. Andrew is within the “Zone of Interests.”
Marion Bank argues that even if Andrew is a person aggrieved within the
meaning of Title VII, he nonetheless lacks standing because “he does not fall
within ‘the zone of interests’ intended to be protected by the statute.” (Doc. 85, p.
25).

Marion Bank argues that Andrew is a distant family member of Ms.

Youngblood, citing his deposition in which he testified that he “hardly ever” spoke
to Ms. Youngblood. (Doc. 85, pp. 25-26) (citing Doc. 80-1, p. 8, tr. pp. 25-26)
(“Maybe at a family gathering if she was there or if she answered the phone
somewhere[.]).
The Supreme Court has held that an employer may unlawfully retaliate
against an employee under Title VII by targeting a third party who is closely
related to the employee. Thompson, 562 U.S. at 173-75. Although the Supreme
Court found that Title VII covers third-party retaliation, the Court “decline[d] to
identify a fixed class of relationships for which third-party reprisals are unlawful.”
Thompson, 562 U.S. at 175. Still, the Supreme Court noted that an action taken
against “a close family member will almost always meet the Burlington standard,
and inflicting a milder reprisal on a mere acquaintance will almost never do so.”
Thompson, 562 U.S. at 175. The Supreme Court “emphasize[d] . . . that ‘the
provision’s standard for judging harm must be objective,’ so as to ‘avoi[d] the
uncertainties and unfair discrepancies that can plague a judicial effort to determine

34

a plaintiff’s unusual subjective feelings.” Thompson, 562 U.S. at 175 (quoting
Burlington, 548 U.S. at 68-69 (alteration in original)).
As Greg’s brother, Andrew is the first uncle of Ms. Youngblood. Courts
generally have found direct relatives to be within the protected zone of interests.
Lewis v. Eufaula City Board of Educ., 922 F. Supp. 2d 1291 (M.D. Ala. 2012)
(daughter); Equal Emp't Opportunity Comm'n v. Willamette Tree Wholesale, Inc.,
No. CV 09-690-PK, 2011 WL 886402 (D.Or. Mar. 14, 2011) (brother). Courts
also have found non-relatives to be within the protected zone of interests.
Thompson, 562 U.S. 170 (fiancé); Lard v. Ala. Alcoholic Beverage Control Bd.,
No. 2:12-cv-452-WHA, 2012 WL 5966617 (M.D. Ala. 2012) (boyfriend); Ali v.
Dist. of Columbia Gov't., 810 F. Supp. 2d 78 (D.D.C. 2011) (best friend); Condiff
v. Hart Cnty. Sch. Dist., 770 F. Supp. 2d 876 (W.D. Ky. 2011) (stepmother).
From an objective standpoint, an uncle is more like “a close family member”
than a “mere acquaintance,” and an adverse action against an employer’s first
uncle and the employee’s father and the employee’s brother certainly might
dissuade that employee from making or supporting a charge of discrimination. It
matters not that Andrew and Ms. Youngblood did not speak often if Marion Bank
was not aware the nature of their relationship and did not factor that into its
decision.

Basing the standing of Andrew and similarly situated third-party

plaintiffs on such subjective measures would allow employers to escape third-party
35

claims after the fact if it turned out that the accused employer misjudged the nature
of the relationship.
B. Prima Facie Case of Third-Party Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff
asserting a third-party theory of retaliation must show (1) that he has a close
relationship with an employee or a former employee of the defendant, and the
employee engaged in statutorily protected expression, (2) that the employer took
an adverse action against him (the aggrieved plaintiff), and (3) that retaliation
against the employee or former employee was the but-for cause of the employer’s
adverse action against the aggrieved employee. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1363 (11th Cir. 2007) (quoting Meeks v. Computer Assocs. Int’l, 15
F.3d 1013, 1021 (11th Cir. 1994)); Univ. of Texas Southwestern Med. Center v.
Nassar, 570 U.S. 338, 352 (2013) (establishing but-for causation standard for Title
VII retaliation claims). The Tolars argue that because of their familial relationship
to Ms. Youngblood, Marion Bank took various adverse actions against them in
retaliation for Ms. Youngblood’s decision to pursue an employment discrimination
claim against the bank. For the reasons discussed below, the Court finds that the
Tolars have not established a prima facie case of third-party retaliation.

36

1. Statutorily Protected Expression
“Statutorily protected expression” consists of either opposition to a practice
that is unlawful under Title VII or participation in a Title VII proceeding. 42
U.S.C. § 2000e–3(a).

The Tolars’ evidence establishes that Ms. Youngblood

engaged in statutorily protected activity when she complained of sexual
harassment by Mr. Taylor to Marion Bank, filed a charge of discrimination with
the EEOC, and filed her Title VII lawsuit. Filing a charge of discrimination with
the EEOC or filing a subsequent Title VII lawsuit constitutes statutorily protected
participation activity. Johnson v. Booker T. Washington Broad. Serv., Inc., 234
F.3d 501, 507 (11th Cir. 2000). Title VII’s protections “extend to those who voice
informal complaints as well.” Furcron, 843 F.3d at 1311; see also Shannon v.
Bellsouth Telecomms., Inc., 292 F.3d 712, 715 n.2 (11th Cir. 2002) (“voicing
complaints of discrimination to [] supervisors” constitutes protected activity). As
discussed, the relationship between Ms. Youngblood and each of the Tolar
plaintiffs is sufficient to make the plaintiffs aggrieved persons for purposes of Title
VII. Therefore, the Tolars have satisfied the first element of their prima facie case.
2. Adverse Action
To demonstrate an adverse action, the Tolars must show that a reasonable
person in Ms. Youngblood’s position “would have found the challenged action” by
the bank “materially adverse, which in this context means it well might have
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dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 68 (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted). “[T]he
antiretaliation provision does not confine the actions and harms it forbids to those
that are related to employment or occur at the workplace.” Burlington, 548 U.S. at
57. Rather, “the significance of a retaliatory act depends on the context of the act,
and a specific action may be materially adverse in some situations but immaterial
in others.” Harris v. Florida Agency for Health Care Admin., 611 Fed. Appx. 949,
952 (11th Cir. 2015) (citing Burlington, 548 U.S. at 69).
Here, Greg has presented evidence of numerous adverse actions that Marion
Bank took against him. The adverse actions largely may be divided into two
groups. First, Marion Bank engaged in the aggressive prosecution of a collection
action in which it pursued a fraudulent transfer claim under the AUFTA, issued
garnishments against the Tolar Family Trust, and objected to Greg’s Chapter 13
bankruptcy plan proposing to repay his entire debt over 54 months. In addition,
the law firm that defended the bank against Ms. Youngblood’s Title VII claim
offered to represent the Bankruptcy Trustee in Greg’s bankruptcy proceeding.
Second, Greg testified that Marion Bank stopped referring legal work to him and
discouraged others from using his services. Reid and Andrew have demonstrated
that Marion Bank included them as defendants in the fraudulent transfer action,
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and Reid has demonstrated that his effort to sit for the Alabama State Bar was
hampered because he was a named defendant in the fraudulent transfer action.
Marion Bank argues that the fraudulent transfer claim cannot constitute an
adverse action because the Tolars cannot demonstrate that the claim “lack[ed] a
reasonable basis in fact or law.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461
U.S. 731, 748 (1983). The Eleventh Circuit has “observed that a set of actions”
may constitute adverse action when considered collectively, even though some
actions do not, by themselves, rise to the level of an adverse action. Harris, 611
Fed. Appx. at 952 (citing Shannon, 292 F.3d at 716 (11th Cir. 2002)). And the
Eleventh Circuit has stated that Burlington “‘strongly suggests that it is for a jury
to decide whether anything more than the most petty and trivial actions’” should be
considered materially adverse. Harris, 611 Fed. Appx. at 952 (quoting Crawford
v. Carroll, 529 F.3d 961, 973 n. 13 (11th Cir. 2008)). Marion Bank’s conduct as to
Greg, Reid, and Andrew, when considered collectively and in context, would deter
a reasonable employee like Ms. Youngblood from making or supporting a charge
of discrimination.
3. Causal Connection
A plaintiff may demonstrate a causal relation by showing close temporal
proximity between statutorily protected activity and a retaliatory action, but
“temporal proximity, without more, must be ‘very close.”’ Thomas, 506 F.3d at
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1364 (11th Cir. 2007) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001)). A mosaic of circumstantial evidence will suffice to establish causation if
the circumstantial evidence raises a reasonable inference that an employer took an
adverse action against the aggrieved person to retaliate against the employee who
engaged in protected activity. Regardless of how a plaintiff proves causation, a
plaintiff asserting a retaliation claim under Title VII must proffer evidence “that
the desire to retaliate was the but-for cause of the challenged [retaliatory] action.”
Nassar, 570 U.S. at 352; see also Trask v. Secretary, Dep’t of Veterans Affairs,
822 F.3d 1179, 1194 (11th Cir. 2016). The but-for standard “is more demanding
than the motivating-factor standard” that applies in Title VII discrimination claims.
Nassar, 570 U.S. at 362. A “‘but-for’ cause requires a closer link than mere
proximate causation; it requires that the proscribed animus have a determinative
influence on the employer’s adverse” action. Sims v. MVM, Inc., 704 F.3d 1327,
1335-36 (11th Cir. 2013) (ADEA action); see also Godwin v. WellStar Health
System, Inc., 615 Fed. Appx. 518, 526 (11th Cir. 2015) (citing Sims) (ADEA
action).
The Tolars’ claims fail as a matter of law because their evidence does not
demonstrate that an effort to retaliate against Ms. Youngblood had a determinative
influence upon the bank’s actions against them. The evidence establishes instead
that the bank’s conduct against Greg, Reid, and Andrew, to the extent that part or
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all of it was retaliatory in the Title VII sense, was reprisal for Greg’s opposition to
unlawful employment practices by the bank’s president. When Greg learned about
his daughter’s situation at the bank, he did what many fathers would do – he tried
to protect her by helping her address the conduct that ultimately led her to file an
EEOC charge against the bank and a lawsuit against the bank and Mr. Taylor.
Greg and his wife confronted the chair of the bank’s board of directors, accused the
bank’s president of sexually harassing their daughter, and asked the board chair to
investigate the allegations against the bank’s president.
When Greg engaged in this opposition conduct, he was handling a number
of real estate transactions for the bank, and he had served as the bank’s attorney in
real estate matters for years. When Greg asked for an investigation into his
daughter’s allegations against the bank’s president, he was not providing legal
advice to his client; he was accusing his client of a violation of Title VII. He told
his client that Ms. Youngblood would be filing an EEOC charge not because he
wanted to prepare his client to defend the charge but because he wanted the bank to
understand the gravity of his request for an investigation. Greg became adverse to
his client, and the dominoes began to fall. 9
8F

9

It does not matter whether Greg told the board’s chairman that Ms. Youngblood was planning
to file an EEOC charge or whether Greg stated that he was about to file an EEOC charge on
behalf of his daughter. Ms. Youngblood stated in her affidavit in underlying her Title VII case
that following her termination, her father met with Mr. Richardson “as my attorney.” (Doc. 91-3,
p. 9). Even if Greg had not mentioned the EEOC charge during his meeting with the board chair,
the record establishes that the bank was under the impression that Greg was representing Ms.
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Marion Bank stopped referring work to Greg shortly after he complained to
the chairman of the bank’s board of directors, and the bank told others in the
relatively small community of Marion that they should not use Greg’s legal
services.

The financial consequences forced Greg to move his law office to

another town and undoubtedly impacted his ability to repay his substantial line of
credit that he obtained from the bank before Ms. Youngblood began working for
the bank. Greg concedes that the bank was entitled to file a collection action
against him.
After the bank obtained a judgment against Greg in the collection action,
Greg and the bank, with the assistance of its attorneys, engaged in a legal game of
cat and mouse. The bank tried to garnish Greg’s income from The Tolar Law Firm
LLC, but Greg had dissolved the LLC. Greg created an addendum to the Tolar
Family Trust to make his interest in the trust judgment-proof, and the bank filed a
fraudulent transfer action, in which Andrew and Reid became entangled. Greg
filed a Chapter 13 bankruptcy petition, which the bank’s attorneys, viewing the
evidence in the light most favorable to Greg, attempted to hijack before Greg’s
bankruptcy attorney could file a proposed Chapter 13 plan. Seemingly exhausted

Youngblood. (Doc. 78-16, p. 5, ¶¶ 10, 13; Doc. 78-17, pp. 4-5, ¶¶ 9, 12; Doc. 78-3, p. 19, tr. p.
70). When asked on what basis the bank had concluded that Greg would be representing his
daughter, Mr. Nichols testified in his depositions that he and Mr. Taylor “took [Mr.
Richardson’s] word for it.” (Doc. 78-3, p. 19, tr. p. 70). Thus, the bank understood that Greg
was taking a position adverse to the bank’s interests.
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from the fight, the parties settled the collection matter. Then Greg, Andrew, and
Reid sued the bank, the bank’s president, and the bank’s attorneys in this action.
True, Ms. Youngblood’s efforts to obtain Title VII relief from the bank were
on a parallel track with the bank’s decision to end its attorney-client relationship
with Greg and the bank’s vigorous collection efforts. But the evidence of Greg’s
conduct renders the temporal proximity of the parallel narratives insufficient to
create a jury question concerning the but-for cause of the bank’s conduct toward
Greg, Andrew, and Reid.
IV.

CONCLUSION

For the reasons described above, the Court grants Marion Bank’s
motions for summary judgment. The Court will enter judgment as a matter of law
in favor of Marion Bank on Greg, Reid, and Andrew Tolar’s claims of
third-party retaliation.
DONE and ORDERED this March 29, 2019.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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