Livingston v. Marion Bank & Trust Co., No. 2:11–cv–1369–LSC.

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Writing for the CourtL. SCOTT COOGLER
Citation30 F.Supp.3d 1285
PartiesRagan T. LIVINGSTON and Mitch Livingston, Plaintiffs; v. MARION BANK AND TRUST CO. and Conrad Taylor, Defendants.
Docket NumberNo. 2:11–cv–1369–LSC.
Decision Date08 July 2014

30 F.Supp.3d 1285

Ragan T. LIVINGSTON and Mitch Livingston, Plaintiffs;
MARION BANK AND TRUST CO. and Conrad Taylor, Defendants.

No. 2:11–cv–1369–LSC.

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

Signed July 8, 2014

Motion granted in part and denied in part.

[30 F.Supp.3d 1291]

Alicia K. Haynes, Charles E. Guerrier, Kenneth D. Haynes, Haynes & Haynes PC, R. Brett Adair, Adair Law Firm LLC, Birmingham, AL, for Plaintiffs.

Anne R. Yuengert, Hallman B. Eady, Summer A. Davis, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Defendants.

[30 F.Supp.3d 1292]

L. SCOTT COOGLER, District Judge.

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.

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 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.

REPORT AND RECOMMENDATION JOHN E. OTT, United States Chief Magistrate Judge.

In this action, Plaintiffs Ragan Tolar Livingston and her husband Mitch Livingston assert claims against Marion Bank and Trust Co. and its president, Conrad

[30 F.Supp.3d 1293]

Taylor, (“Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and Alabama state law. (Doc.1 1 (“Complaint” or “Compl.”)). The action was assigned to the undersigned United States Magistrate Judge pursuant to this court's general order of reference. The cause now comes to be heard for a report and recommendation, see 28 U.S.C. § 636(b), Fed.R.Civ.P. 72(b)(1), on Defendants' motion for summary judgment. (Doc. 44). The parties have submitted evidence and briefed their respective positions on the motion, which is ripe for decision. Upon consideration, it will be recommended that Defendants' motion for summary judgment be granted in part and denied in part.


Pursuant to Rule 56 of the Federal Rules of Civil Procedure, party is authorized to move for summary judgment on all or part of a claim or defense asserted either by or against the movant. Under that rule, 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. Proc. 56(a). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. Proc. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” In its review of the evidence, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir.2000). At summary judgment, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

[30 F.Supp.3d 1294]


In early February 2008, Plaintiff Ragan Tolar Livingston (“Ragan”) interviewed for a job with Defendant Marion Bank & Trust (“the Bank”). (Doc. 55–1 (“Ragan Aff.”) at 1 3). Interviewed by Defendant Taylor, who is the Bank's president, and, Lisa Rayfield, his personal assistant at the Bank's main branch in Marion, Alabama (Ragan Aff. at 1), Ragan was informed that she was being considered for a position as Taylor's personal assistant at the Bank's other branch recently opened in Selma, Alabama. ( Id.) After a second interview, Ragan was offered the position, at which time it was explained to her that she would train at the Marion branch for approximately two months and then transfer to the Selma branch. ( Id.) At that interview, Ragan was also told that Taylor was the highest ranking official at either branch and that no one else at the Bank had more authority or could make final decisions. ( Id.) Ragan accepted the position, and she began working at the Marion branch on February 11, 2008. (Deposition of Ragan Livingston (“Ragan Dep.”) at 65, 88–89 4).

Upon her hire, Ragan was 23 years old and had been married to her husband (and co-plaintiff here) Mitch Livingston (“Mitch”), for approximately 10 months. One Saturday soon after Ragan her employment began, Taylor, who was then 62 years old, called her into his office around closing time for a private meeting to talk about Ragan and Mitch bringing into good standing certain of their accounts with the Bank. ( See Ragan Aff. at 2; Ragan Dep. at 140–41). While the meeting started on that topic, Taylor began to ask Ragan personal questions about her marriage to Mitch and make disparaging remarks about him. (Ragan Aff. at 2; Ragan Dep. at 140–42). Several months before marrying Mitch, Ragan had given birth to a daughter by another man she had previously dated, who also happened to be Taylor's nephew. (Ragan Dep. at 26–27, 141–42). Taylor asked Ragan whether “she was in love with” with Mitch, whether she had married him “for real” or married him “for show” just “to make his nephew angry,” and whether she “had ever considered divorce.” (Ragan Dep. at 141; Ragan Aff. at 2). Ragan responded that “of course” she and Mitch had gotten married “for real” and that they “loved each other.” (Ragan Dep. at 142; Ragan Aff. at 2).

In the period following that uncomfortable meeting, Taylor subjected Ragan to other conduct she considered sexually harassing. Also early in her employment, Ragan was in Taylor's office when he pressed her for details about her sex life, asking her “how good the sex was” with her husband, and he attempted to engage her in a discussion about sexual positions, by asking her whether Mitch would “bend[her] over” and whether she preferred “to ride on top.” 5 (Ragan Dep. at

[30 F.Supp.3d 1295]

142, 205–07). On another occasion, Taylor similarly suggested...

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