Greg Tolar v. Marion Bank and Trust ( 2021 )

USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 1 of 43
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11546
________________________
D.C. Docket No. 2:13-cv-00132-MHH
GREG TOLAR,
REID TOLAR,
ANDREW TOLAR,
Plaintiffs-Appellants,
versus
BRADLEY ARANT BOULT CUMMINGS,
LLP, et al.,
Defendants,
MARION BANK AND TRUST,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 17, 2021)
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 2 of 43
Before GRANT, MARCUS, and JULIE CARNES, Circuit Judges.
JULIE CARNES, Circuit Judge:
Plaintiffs appeal the district court’s order dismissing their Title VII
retaliation claims against Defendant Bradley Arant Boult Cummings, LLP
(“Bradley Arant”) and granting summary judgment to Defendant Marion Bank and
Trust (“Marion Bank”) on these Title VII retaliation claims. After a careful review
of the record, and with the benefit of oral argument, we affirm.
BACKGROUND
I. Facts
Defendant Marion Bank is a financial institution located in Marion,
Alabama. Defendant Bradley Arant is an Alabama law firm that has represented
Marion Bank in litigation related to this case. Plaintiffs Greg, Reid, and Andrew
Tolar are the father, brother, and uncle (respectively) of Ragan Youngblood, 1 a
former employee of Marion Bank who was hired in February 2008 and fired seven
months later, in September 2008. During her employment with Marion Bank,
Ragan served as the personal assistant to the Bank’s president and CEO, Conrad
Taylor. After she was fired, Ragan filed an EEOC charge alleging that Taylor had
sexually harassed her and retaliated against her for complaining about that
1
Ragan Youngblood is sometimes referred to in the record by her former married name, Ragan
Livingston.
2
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 3 of 43
harassment. Plaintiffs claim the Bank and its counsel Bradley Arant took adverse
action against them in retaliation for Ragan’s protected conduct.
A. Greg Tolar’s Prior Relationship with Marion Bank
Ragan’s father, Greg Tolar, is an attorney who practices law in Alabama.
Greg2 began handling some loan closings for Marion Bank in 2005, and he
relocated his law practice to Marion that same year. By the time Ragan started
working for the Bank in 2008, the Bank was paying Greg approximately $3,500 a
month in legal fees related to closings and collections work.
In addition to his working relationship with the Bank, Greg was the debtor
on two outstanding loans. Specifically, on February 1, 2008, before Ragan was
hired, Marion Bank refinanced a $100,000 unsecured line of credit that Greg had
with Regions Bank. Per the refinancing agreement, Greg’s loan with Marion Bank
matured on January 31, 2009. On March 8, 2008, a month after Ragan was hired,
Greg co-signed a separate, approximately $25,000 commercial loan that Marion
Bank made to Ragan’s then-husband, Mitchell Livingston, who needed the money
to open a restaurant. This $25,000 commercial loan was secured by two vehicles
owned by the Livingstons.
2
To avoid confusion, we refer to each Tolar family member by his or her first name.
3
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 4 of 43
B. Ragan’s Claims of Sexual Harassment and Retaliation
Marion Bank hired Greg’s daughter Ragan in February 2008, and it fired her
seven months later, in September 2008. Ragan claims the Bank’s president and her
direct supervisor, Conrad Taylor, sexually harassed her while she worked for the
Bank. According to Ragan, Taylor convinced the Bank to fire her when she
threatened to report his conduct.
In late September 2008, a few days after Ragan was fired, her father Greg
met with Marion Bank’s board chairman, Randy Richardson. During the meeting,
Greg informed Richardson about Ragan’s sexual harassment claim, and he asked
Richardson to rescind Ragan’s termination, investigate the claim, and keep Ragan
on administrative leave with her insurance in effect while the investigation was
pending. Greg testified in the present litigation that during the September 2008
meeting he also advised Richardson that “an EEOC charge would be forthcoming”
regarding Ragan’s sexual harassment claim. When he was deposed in Ragan’s
underlying Title VII suit, Greg testified more specifically that he told Richardson
during the meeting that “we would be filing an EEOC charge on [Ragan’s] behalf.”
(emphasis added). Ragan likewise testified in an affidavit she submitted in her
underlying suit that Greg met with Richardson in September 2008 “as [her]
attorney.” At the end of the meeting, Richardson asked Greg about the status of
4
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 5 of 43
his pending legal work for the Bank, and Greg told Richardson he was in the
process of completing three foreclosures.
The next day, Richardson informed Greg that the Bank believed Taylor’s
version of the events underlying Ragan’s sexual harassment claim and that the
Bank would not be investigating further. Richardson instructed Greg to complete
the pending foreclosures, with Bank vice-president Preston Nichols acting as
Greg’s contact for the work. Greg completed the pending foreclosures in early
October 2008. Shortly thereafter, the Bank’s board approved a list of attorneys
authorized to conduct legal work on behalf of the Bank, which list excluded Greg.
The Bank did not refer any new legal work to Greg after his September 2008
meeting with Richardson. Nichols testified that the Bank stopped referring legal
work to Greg because its officers believed Greg had become “adversarial to [the
Bank] in another lawsuit” (Ragan’s sexual harassment claim), among other issues.
On October 9, 2008, Ragan filed a handwritten EEOC charge against Marion
Bank alleging sexual harassment and retaliation in violation of Title VII. Ragan
subsequently submitted a typed version of her charge at the EEOC’s request.
Although Greg’s name did not appear as counsel on either charge, Greg sent the
EEOC a letter in November 2008 advising the agency that he represented Ragan
“as her legal counsel as well as being her father” and that any future
correspondence should be directed to him.
5
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 6 of 43
In 2011, Ragan filed a Title VII suit against Marion Bank and Conrad
Taylor. Bradley Arant represented the Bank in the Title VII action. Greg did not
represent Ragan.
C. Greg Tolar’s Loan Defaults
After Ragan’s termination from employment, her husband defaulted on the
$25,000 loan from the Bank he had obtained to fund his business start-up, and
Greg failed to satisfy his obligation as co-signor to pay the debt. Thereafter, Greg
failed to repay his $100,000 refinanced loan with Marion Bank by its January 31,
2009 maturity date, and ultimately defaulted on that loan as well. Plaintiffs claim
the Bank caused both defaults because its decision to stop referring legal work to
Greg cut off a primary source of Greg’s income and prevented him from
financially supporting Ragan and her husband.
Whatever the explanation, both defaults ultimately resulted in litigation.
With respect to the $25,000 loan, the Bank repossessed the vehicles that were
pledged as security for the loan and sold them at auction. The Bank applied the
proceeds of the sale—about $1,750—to the loan, and then filed an action in
Alabama circuit court in July 2009 against Greg and Ragan’s husband, Mitchell, to
recover the remaining loan balance. In September 2010, the court entered
judgment in the Bank’s favor and ordered Ragan’s husband and Greg to pay
$28,687 in principal and interest, plus $4,303 in attorney’s fees.
6
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 7 of 43
As to Greg’s defaulted $100,000 line-of-credit loan, the Bank agreed in
March 2009 to extend the maturity date of the debt for another year—to January
30, 2010—in exchange for Greg’s partial payment of interest. As it was outside
Bank policy to extend a loan based on a promise to pay only a partial payment of
interest, the Bank loan committee had to approve this extension. When Greg failed
to pay the debt by the renegotiated, extended maturity date, the Bank tried
unsuccessfully to reach him by telephone. The Bank then emailed Greg and
inquired about his plans for repayment; Greg’s only response was an email stating
that he had gotten the Bank’s email. Accordingly, the Bank filed an action in
Alabama circuit court in March 2010 on this debt. The Bank obtained a judgment
against Greg in this second action for $116,880 in principal and interest, plus
$11,688 in attorney’s fees, which judgment, along with the judgment on the
$25,000 debt, also issued in September 2010.
After obtaining the judgments against Greg, the Bank pursued garnishment
against his wages. The Alabama circuit court issued a garnishment against Greg,
naming his law firm as the garnishee. Greg responded to the garnishment by
advising the court that he had dissolved the law firm. In post-judgment
interrogatories submitted in December 2010, Greg stated that he had no assets to
pay the Bank’s judgments against him.
7
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 8 of 43
D. The Tolar Family Trust
Prior to the loan defaults, Greg, along with his brother Andrew Tolar, was a
trustee and income beneficiary of what was purportedly an irrevocable trust formed
by their father, James Tolar. The trust agreement provided that the trust income
would be available to and under the sole direction of James Tolar’s wife, Martha
Tolar, for as long as she lived. Upon Martha’s death, the trust income was to be
distributed to Greg, Andrew, and two of James Tolar’s other children. The
agreement contained a spendthrift provision stating that the interest of any
beneficiary in the trust was not subject to “assignment, alienation, pledge,
attachment, or claims of creditors” and that it “shall not otherwise be voluntarily or
involuntarily alienated or encumbered by such beneficiary.” The agreement
provided that the trust would remain in full force and effect until all of James
Tolar’s children are deceased “at which time it will terminate” and the entire
corpus of the trust will be “divided and distributed” equally among James Tolar’s
grandchildren.
In February 2010, which was several months after the Bank began collection
proceedings on the $25,000 loan and within a month of Greg’s default on the
renegotiated $100,000 loan, Greg, as trustee, executed an addendum to the Tolar
Family Trust. The addendum made several changes, the most relevant one being
the removal of him as a beneficiary of the trust. Specifically, the changes executed
8
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 9 of 43
by Greg included: (1) designating Greg’s son, Reid Tolar, as a successor trustee,
(2) deleting all references to Greg and Martha Tolar as beneficiaries and replacing
their names with the names of James Tolar, Andrew Tolar, Reid Tolar, and Dean
Tolar, and (3) dividing the corpus of the trust among James, Andrew, Reid, and
Dean Tolar in shares of approximately 20-25% each.
E. Actions Against the Tolar Family Trust
Following its unsuccessful efforts in late 2010-early 2011 to garnish Greg’s
wages, the Bank’s collection efforts had remained dormant. That changed after
Greg’s father, the trust grantor James Tolar, died on December 25, 2011. Shortly
thereafter, in January of 2012, Mike Tolar mailed the Bank a copy of the original
trust and the addendum. It appeared to Bank vice-president Nichols, who was
overseeing the collection efforts, that “Greg was attempting to shift his interest in
the trust to Reid.” Accordingly, the Bank “sought the advice of counsel to see if
that [the trust] was an avenue which we could pursue to collect our judgment,”
retaining a bankruptcy partner at Bradley Arant to investigate any collection
options that might arise from the trust. Bradley Arant had not previously
represented the Bank in the earlier two collections actions.
On February 8, 2012, Bradley Arant filed a notice of appearance as
additional counsel in the 2010 collection actions then pending against Greg in the
Alabama circuit court, which notice was served on Greg. As noted supra, post-
9
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 10 of 43
judgment discovery had already taken place by that time, and, in response to
interrogatories, Greg had stated that he had no assets. On the next day after
Bradley Arant’s appearance, Greg contacted Bradley Arant counsel to inquire
whether the matter could be settled via monthly payments for an unspecified
amount. A few days thereafter, counsel emailed Greg, inviting him to make a
specific proposal.
On February 10, 2012, on the advice and with the assistance of Bradley
Arant, the Bank filed a complaint against the Tolar Family Trust in Alabama
circuit court, asserting a claim against the trust under the Alabama Fraudulent
Transfer Act (referred to interchangeably as “AUFTA” or “the fraudulent transfer
action”). The Bank alleged in the AUFTA complaint that Greg had restructured
the trust and assigned his beneficial interest to his son, Reid, to frustrate the Bank’s
ability to collect its outstanding judgments. The complaint named Reid as an
individual defendant, and it named Greg and Andrew as defendants in their roles as
trustees. In the complaint, the Bank sought a temporary restraining order (“TRO”)
prohibiting the distribution of any proceeds attributable to Greg’s former beneficial
interest in the trust.
On March 5, 2012, the Alabama circuit court entered the TRO requested by
the Bank, and it enjoined the family trust from making distributions to Greg or his
son, Reid. Thereafter, in March 2012, Greg emailed the Bradley Arant counsel
10
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 11 of 43
offering to settle the judgments now totaling approximately $170,000 for only
$40,000. Counsel responded that the Bank was not in a position to settle for such a
discount or to make a counteroffer without first conducting some discovery.
When the Bank filed the AUFTA complaint, Reid was a third-year law
student preparing to sit for the Alabama bar exam. Because he was named as a
defendant in the action, Reid had to report the lawsuit to the state bar’s character
and fitness committee. Although the committee allowed Reid to sit for the bar
exam after conducting a fitness hearing, he claims that he was injured by being
named in the action.
F. Greg Tolar’s Bankruptcy Petition
In April 2012, which was shortly after the Bank had filed the AUFTA suit
and after the state court had temporarily enjoined distributions from the family
trust to Greg or his son, Reid, Greg filed for Chapter 13 bankruptcy. Before he
filed the petition, Greg advised the bankruptcy trustee that his Chapter 13 plan
would provide for 100% repayment of his debt to Marion Bank. After Greg filed
for bankruptcy, Bradley Arant informed the trustee of the AUFTA complaint
pending in state court. Although Plaintiffs assert that this contact was irregular,
Bradley Arant claims that, as a creditor’s counsel, it routinely apprises the
bankruptcy trustee of any relevant pending litigation.
11
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 12 of 43
In May 2012, Greg filed his Chapter 13 plan, which proposed to pay 100%
of the Bank’s judgments over a period of 54 months. The Bank objected to Greg’s
plan on two grounds: (1) it accused Greg of not filing the petition in good faith,
but rather as an evasive tactic to avoid paying his debts and (2) it argued that the
plan did not account for the lost-time value of money. The Bank claimed in its
objection that Greg was a current income beneficiary of the Tolar Family Trust
with access to trust funds that could satisfy his debts to the Bank. According to
Plaintiffs, this claim was false because Greg was not entitled to any trust income
while Martha Tolar was alive, any interest Greg had in the trust was not accessible
to creditors pursuant to the trust’s spendthrift clause, and Greg was not entitled to
any distribution of trust funds pursuant to the 2010 addendum.
In August 2012, Greg filed an adversary proceeding in the bankruptcy court
alleging that the Bank had violated the automatic stay provisions of the bankruptcy
code by failing to release the TRO in the AUFTA litigation pending in the
Alabama circuit court. Shortly thereafter, the Bank moved for a TRO and a
preliminary injunction in the bankruptcy court seeking to enjoin any distributions
from the Tolar Family Trust attributable to Greg or Reid’s beneficial interest. The
bankruptcy court granted the Bank’s motion and preliminarily enjoined the trust
from making distributions to Greg, Reid, or any other person for their benefit.
12
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 13 of 43
G. Settlement of Greg’s Debts to Marion Bank
The parties ultimately settled the collection actions (including the AUFTA
claim) and the bankruptcy litigation in the fall of 2012. Pursuant to the settlement
agreement, the bankruptcy court dismissed Greg’s Chapter 13 petition and Reid
consented to the withdrawal of $170,000 from his interest in the Tolar Family
Trust to satisfy the two judgments against Greg. In December 2012, the parties
filed a joint stipulation of dismissal of the Bank’s AUFTA claim. Prior to
settlement, in June 2012, Greg had filed a charge with the EEOC alleging that the
Bank had engaged in third-party retaliation against his daughter, via the actions the
Bank had taken against Greg.
II. Procedural History
In January 2013, Plaintiffs filed this lawsuit asserting third-party Title VII
retaliation claims against Marion Bank and the law firm representing it, Bradley
Arant.3 In support of their claims, Plaintiffs allege that the Bank and Bradley
Arant took adverse action against them in order to punish the Bank’s former
employee, Ragan, for pursuing her Title VII sexual harassment claim. The adverse
actions alleged were (1) the collection-related litigation initiated by Bradley Arant
on behalf of the Bank to collect the moneys for which two judgments against Greg
3
Plaintiffs also asserted various state law claims against Defendants and state and Title VII
claims against Taylor, but Plaintiffs do not appeal the district court’s ruling dismissing those
claims.
13
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 14 of 43
had earlier been issued and (2) the Bank’s refusal to continue referring legal work
to Greg.
The district court dismissed Plaintiffs’ retaliation claims against Bradley
Arant pursuant to Federal Rule 12(b)(6). The court concluded that Bradley Arant
could not be liable to Plaintiffs for retaliation under Title VII because neither
Plaintiffs nor Ragan had an employment relationship with Bradley Arant.
Plaintiffs appeal this ruling.
Following discovery, the district court granted the Bank’s motion for
summary judgment on Plaintiffs’ remaining retaliation claims. The court
concluded that Plaintiffs were “persons aggrieved” within the meaning of Title
VII—and thus had standing to pursue a third-party retaliation claim under that
statute—and that Ragan had engaged in statutorily protected activity. However,
the court determined that Plaintiffs could not establish the necessary causal link
between Ragan’s protected activity and any adverse action the Bank took against
Plaintiffs. Plaintiffs appeal the court’s summary judgment ruling as to their claims
against Marion Bank. Albeit we do not necessarily endorse the district court’s
reasoning that Plaintiffs could be considered to be persons aggrieved, for purposes
of third-party status, we will assume that to be so. And we affirm the district
court’s ruling that summary judgment was properly granted based on the
application of the McDonnell Douglas standard.
14
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 15 of 43
DISCUSSION
I. Plaintiffs’ Retaliation Claims Against Marion Bank
A. Standard of Review
We review the district court’s summary judgment ruling in favor of Marion
Bank de novo, construing the evidence in the light most favorable to Plaintiffs and
drawing all reasonable inferences in their favor. Hamilton v. Southland Christian
Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). Applying that standard, summary
judgment is appropriate if the Bank shows that there are no genuine issues of
material fact and that the Bank “is entitled to judgment as a matter of law.” Id.(quoting Fed. R. Civ. P. 56(a) (internal quotation marks omitted)).
B. Legal Framework Governing Third-Party Retaliation Claims
Under Title VII
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).
A Title VII retaliation claim based on circumstantial evidence, like the claim
asserted by Plaintiffs here, is ordinarily analyzed under the McDonnell Douglas
burden-shifting framework. Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325
(11th Cir. 2020). Pursuant to that framework, the plaintiff first must establish a
prima facie case of retaliation by showing that: (1) she engaged in statutorily
protected conduct—that is, conduct protected by Title VII; (2) she suffered an
15
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 16 of 43
adverse action; and (3) “there is some causal relationship between the two events.”
Id. (internal quotation marks omitted). The burden then shifts to the employer to
articulate a legitimate, nonretaliatory reason for the adverse action. Id. Assuming
the employer’s burden is met, “the burden shifts back to the plaintiff to establish
that the reason offered by the [employer] was not the real basis for the decision,
but a pretext” for retaliation. Id. (internal quotation marks omitted).
The wrinkle in this case is that Plaintiffs, who were not employees of the
Bank, concede that they are not claiming that the Bank retaliated against them
because they engaged in protected activity under Title VII. Instead, basing their
claims on the protected conduct of a non-party employee of the Bank—their
relative, Ragan Youngblood—Plaintiffs argue that the Bank’s actions toward
Plaintiffs were done to retaliate against Ragan for having engaged in her own
protected conduct. Specifically, Plaintiffs assert that Ragan engaged in protected
conduct when she complained about sexual harassment and filed an EEOC charge
against her employer, Marion Bank, and that the Bank retaliated against Ragan by
taking the adverse actions identified above against Plaintiffs. In other words,
Plaintiffs assert claims for third-party retaliation in violation of Title VII.
The Supreme Court has held that Title VII can support a viable claim for
third-party retaliation under some circumstances. See Thompson v. N. Am.
Stainless, LP, 562 U.S. 170, 174–75 (2011). The defendant-employer in
16
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 17 of 43
Thompson fired the plaintiff three weeks after it received notice that the plaintiff’s
fiancée, who also was employed by the defendant, had filed an EEOC sex
discrimination charge. See id. at 172. The plaintiff responded with his own Title
VII suit, alleging that he was fired in retaliation for his fiancée’s EEOC charge.
See id. The district court granted summary judgment to the defendant employer,
and the Sixth Circuit affirmed on the ground that Title VII “does not permit third
party retaliation claims.” Id. (internal quotation marks omitted).
The Supreme Court reversed, holding that: (1) firing the plaintiff to retaliate
against his fiancée violated Title VII’s antiretaliation provision and (2) the plaintiff
could assert a claim for relief under Title VII because he satisfied the statutory
definition of a “person claiming to be aggrieved” by the alleged retaliation. See id.at 173–78 (citing 42 U.S.C. § 2000e–5(f)(1) (internal quotation marks omitted)).
Title VII provides such an “aggrieved” person with the right to bring a “civil
action” to recover for a violation of the statute. See 42 U.S.C. § 2000e–5(f)(1).
As to the first issue, the Court in Thompson had “little difficulty” concluding
that the plaintiff’s firing in retaliation for his fiancée’s protected conduct violated
Title VII. See Thompson, 562 U.S. at 173. The Court noted that, as it had held in
Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53 (2006),
the requisite adverse action for purposes of a Title VII retaliation claim does not
necessarily have to be a negative action relating to the terms and conditions of
17
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 18 of 43
employment. Instead, the Court in Burlington interpreted Title VII’s antiretaliation
provision more broadly to prohibit “any employer action that well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Thompson, 562 U.S. at 173–74 (internal quotation marks
omitted). The Thompson Court found it “obvious that a reasonable worker might
be dissuaded from engaging in protected activity if she knew that her fiancé would
be fired.” Id. at 174. The Court, however, declined to set out a more specific rule
as to what other types of relationships or adverse actions might provide fodder for
a viable claim of third-party reprisals in violation of Title VII’s antiretaliation
provision, explaining:
We expect that firing 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, but beyond that we are reluctant to
generalize.
Id. at 175.
As to the second issue—whether the plaintiff-fiancé could properly be
considered a “person aggrieved” and therefore a person eligible to bring a
retaliation action against the employer—the Court acknowledged that this question
was “more difficult.” Id. Again, Title VII provides that “a civil action may be
brought . . . by the person claiming to be aggrieved” by its violation. 42 U.S.C.
§ 2000e–5(f)(1). The Court noted that the “person aggrieved” language could be
interpreted to confer a right to sue on anyone with Article III standing—that is,
18
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 19 of 43
anyone who suffered an “injury in fact” as a result of unlawful retaliation, which
injury was “remediable by the court.” See Thompson, 562 U.S. at 175–76. At the
other extreme, the “person aggrieved” language could be interpreted to limit the
right to sue to the employee who engaged in the protected conduct. See id. at 177.
The Court in Thompson ultimately opted for a middle ground, holding that
the term “aggrieved” as used in Title VII incorporates a zone-of-interests analysis
that confers a right to sue on a plaintiff who “falls within the ‘zone of interests’
sought to be protected” by Title VII, but excludes a plaintiff “who might
technically be injured in an Article III sense but whose interests are unrelated to
the statutory prohibitions in Title VII.” Id. at 177–78. The Court concluded that
the plaintiff in Thompson satisfied this zone-of-interests test, explaining:
[The plaintiff] was an employee of [the defendant], and the purpose of Title
VII is to protect employees from their employers’ unlawful actions.
Moreover, accepting the facts as alleged, [the plaintiff] is not an accidental
victim of the retaliation—collateral damage, so to speak, of the employer’s
unlawful act. To the contrary, injuring him was the employer’s intended
means of harming [his fiancée]. Hurting him was the unlawful act by which
the employer punished her.
Id. at 178.
Pursuant to Thompson then, Plaintiffs must meet two prerequisites to even
get out of the starting gate on a third-party Title VII retaliation claim against
Marion Bank: they must show that (1) the Bank’s adverse actions against them
constitute actionable retaliation because those actions “well might have dissuaded
19
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 20 of 43
a reasonable worker” (Ragan) from engaging in conduct protected by Title VII and
(2) Plaintiffs qualify as “persons aggrieved” under Title VII because they fall
within the zone of interests protected by the statute. See id. at 174, 177–78
(quoting Burlington, 548 U.S. at 68).
C. Retaliation Claim Based on Litigation Filed By Bradley Arant on
the Bank’s Behalf
1. The Claim
As set out in their complaint, Plaintiffs assert that, in order to retaliate
against Ragan, the Bank, assisted by counsel Bradley Arant, engaged in “scorched
earth” litigation tactics in an effort to collect on judgments issued seventeen
months before against Greg. As to just what those tactics were, Plaintiffs assert
that the only issue left to be resolved at the time the Bank retained Bradley Arant
was Greg “satisfying the judgment”; that is, collecting on the existing judgments.
Yet, according to Plaintiffs, the Bank, through Bradley Arant, rebuffed Greg’s
attempt to “immediately resolve the judgment.” Instead, Plaintiffs complain,
“[r]ather than respond to Greg Tolar’s attempts and offer,” the Bank, through its
counsel, filed a lawsuit accusing Greg and his son of a fraudulent transfer in
connection with the family’s trust in order “to hinder the Bank’s ability to collect
20
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 21 of 43
on the judgment against Greg Tolar.” This lawsuit, according to Plaintiffs, was
“unnecessarily file[d].”
Plaintiffs claim that “[b]y refusing to cooperate with Greg Tolar to settle the
debt or provide pay-off information,” the Bank and Bradley Arant “further harmed
Greg Tolar’s financial position as an attorney to the point that he was forced to
seek protection through Chapter 13 Bankruptcy to protect his business.” Then,
instead of acceding to Greg’s proposal as to how he should be allowed to pay off
his debt, the Bank, through Bradley Arant, filed a lengthy objection to the plan in
the bankruptcy court and obtained from that court a TRO to freeze an amount in
the family trust account larger than the amount the Bank ultimately cited in its
proof of claims. Once the Bank filed its formal proof of claims, correcting its
earlier incorrect calculation of interest and deleting the calculation for attorney’s
fees, Greg then arranged to pay off the debt he owed the Bank and the bankruptcy
petition was dismissed. According to Plaintiffs, the Bank’s litigation tactics
“unnecessarily drag[ged] out [Greg’s] ability to seek bankruptcy relief through the
courts.”
Condensing the above assertions, all three plaintiffs—Greg, Reid, and
Andrew—complain about the Bank’s filing of the AUFTA fraudulent transfer
action in state court and its filing of a TRO in the bankruptcy court to temporarily
enjoin the disbursement of funds attributable to Greg’s beneficial interest in the
21
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 22 of 43
family’s trust pending resolution of the dispute between the parties. Greg also
complains that the Bank unnecessarily dragged out the bankruptcy proceeding by
filing lengthy objections to Greg’s bankruptcy plan to repay his debt to the Bank
within fifty-four months.
2. Viability, as a General Matter, of a Retaliation Claim Based on
Adverse Litigation
Plaintiffs argue that the Bank engaged in “scorched earth” litigation against
Plaintiffs to collect the money due the Bank on judgments it had earlier obtained
against Greg Tolar. Plaintiffs further contend that the Bank engaged in these
aggressive tactics because it wanted to retaliate against a relative of the Plaintiffs,
which relative had engaged in protected conduct under Title VII when she claimed
to be the victim of sexual harassment by a Bank official. In addressing this claim,
the first question one might ask is whether the filing of a purportedly legitimate
lawsuit—or motion in a lawsuit—can itself subject the initiator of that action to
suit by the person he sued, on the ground that the initiator’s motive for filing the
pleading in question was itself impure. One might wonder why, if the defendant
has a valid cause of action against the plaintiff, he should not be permitted to sue—
utilizing all tools available to effectuate that suit—regardless of the motivation
22
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 23 of 43
prompting the decision to sue. After all, it is presumably the rare lawsuit that is
brought with warm-hearted notions in mind.
In addition, plumbing the complex set of considerations that likely
accompany any decision to initiate litigation is a very uncertain task, requiring an
examination of not just subjective motivations, but also objective legal
assessments. As the Supreme Court has noted in the context of a § 1983 First
Amendment retaliatory arrest claim: the allegation of retaliatory animus by a
governmental entity is “easy to allege and hard to disprove.” Nieves v. Bartlett,
139 S. Ct. 1715, 1725 (2019) (internal quotation marks omitted). Indeed, this
Court has recently held that “the presence of probable cause will generally defeat a
. . . § 1983 First Amendment retaliation claim based on a civil lawsuit as a matter
of law.” DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1304 (11th Cir. 2019).
DeMartini explained that “[P]robable cause to initiate [a civil lawsuit] requires no
more than a reasonable belief that there is a chance that a claim may be held valid
upon adjudication.” Id. at 1300–01 (alterations accepted and internal quotation
marks omitted) (quoting Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus.,
Inc., 508 U.S. 49, 62–63 (1993)).
We have not considered whether the existence of probable cause would
likewise defeat a Title VII retaliation claim that is founded on the filing of a civil
23
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 24 of 43
lawsuit.4 If, however, the existence of probable cause for the Bank’s AUFTA
action and for its objections to Greg’s bankruptcy plan meant the death knell for
this type of claim, the claim might well sink on just that preliminary element.
After all, the Bank achieved the relief requested by the AUFTA claim, as two
courts granted the Bank a TRO enjoining a distribution of any money in the trust
potentially attributable to Greg’s beneficial interest and as Reid ultimately
withdrew $170,000 from his beneficial interest in the trust to satisfy the judgments
against Greg. As to Greg’s complaint that the Bank acted unreasonably in
objecting in bankruptcy court to Greg’s proposed plan to pay the judgment mount
over a fifty-four month period, Greg likewise eventually acceded to that objection,
paying the money he owed and dismissing the bankruptcy petition.
Notwithstanding the Bank’s ultimate success on the litigation at issue,
however, the parties have not adequately briefed the question whether the Bank
had probable cause to bring the AUFTA claim or to object to Greg’s bankruptcy
plan. Neither have the parties addressed the question whether DeMartini applies in
a Title VII context. Because we conclude, on other grounds, that the district court
correctly granted summary judgment to the Bank on Plaintiffs’ retaliatory-
4
We have applied a similar rule in the ADA context, albeit in an unpublished—and hence non-
precedential—case. See Smith v. Miami-Dade Cnty., 621 F. App’x 955, 960 (11th Cir. 2015)
(explaining that, in order to prevail on a retaliatory-litigation claim under the ADA, the plaintiff
must allege that litigation “was filed with a retaliatory motive and was lacking a reasonable basis
in fact or law”).
24
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 25 of 43
litigation claim, we leave resolution of the question whether DeMartini applies to a
Title VII retaliation claim for another day.
3. Viability of a Third-Party Retaliation Claim Based on the Bank’s
Litigation Against Plaintiffs
Assuming the viability of Plaintiffs’ retaliatory-litigation claim
notwithstanding the uncertainty that the claim meets the threshold requirement
discussed above, Plaintiffs must still clear the hurdles established for a third-party
retaliation claim: that is, a claim that the particular plaintiff can be awarded
damages under Title VII based on actions taken by the defendant for the purpose of
retaliating against someone other than the plaintiff. Specifically, Plaintiffs, who
were not employees of the Bank, claim that the Bank engaged in the “scorched
earth” litigation against them described above in order to retaliate against the
Bank’s employee and their relative: Ragan Livingston. The district court
concluded that Greg, Reid, and Andrew satisfied the requirements set out in
Thompson for pursuing a third-party retaliation claim against Marion Bank.
We are not so sure about that conclusion. In assessing this issue, it is clear
that Plaintiffs here present a far weaker justification for third-party claimant status
than did the plaintiff in Thompson. Thompson was both the fiancé of a woman
who had alleged unlawful conduct under Title VII by her employer and an
employee himself of that employer, and the Supreme Court concluded that the
25
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 26 of 43
employer’s firing of Thompson to retaliate against his complaining fiancée met the
Court’s newly-announced standard for the filing of a third-party retaliation claim.
Specifically, as to the first element of that test—whether, pursuant to
Burlington, the employer’s action against the third party might have dissuaded a
reasonable worker from making a charge of discrimination—the Supreme Court
found it obvious that firing a complaining employee’s fiancé/co-worker would
dissuade that employee from charging discrimination. In this case, however, it is
far from obvious that the litigation measures taken by the Bank in trying to recover
on judgments owed by Greg could be construed as actions that would have
dissuaded a reasonable employee in Ragan’s position from voicing her sexual
harassment complaint. Presumably, a reasonable employee would assume that a
relative who owed the employee’s employer a great deal of money would be
expected to honor a judgment requiring the payment of that money—regardless of
whether or not the employee happened to have made a complaint on an entirely
unrelated matter. Similarly, as to the second element of the test, which looks to
whether the third-party plaintiff is an “aggrieved party” under the statute, it is
likewise not immediately apparent how disallowing a lawsuit by an employer
against a complaining employee’s relative to recover monies the relative
undisputedly owes the employer is a prohibition that somehow fits within the
“zone of interests” served by Title VII.
26
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 27 of 43
Again, though, because we conclude that summary judgment is warranted
for the Bank on traditional McDonnell Douglas grounds, we need not decide the
novel question whether Plaintiffs qualified under Thompson as proper third-party
retaliation claimants for purposes of the retaliatory-litigation claim. Instead, we
will assume without deciding that the district court correctly concluded that
Plaintiffs so qualified. And, as we next explain, the district court correctly
concluded that the Bank was entitled to summary judgment on this claim.
4. Summary Judgment Is Warranted for the Bank on the
Retaliatory-Litigation Claims Based on Application of the
McDonnell Douglas Standard
As set out earlier in this opinion, to establish a prima facie case of retaliation
on their third-party claim based on the Bank’s filing of litigation against them,
Plaintiffs must show that: (1) their close relative, Ragan Youngblood, engaged in
protected conduct; (2) Marion Bank took adverse action against Plaintiffs; and (3)
there is a causal link between the two events. Assuming Plaintiffs can establish a
prima facie case, the burden shifts to the Bank to articulate a legitimate,
nonretaliatory reason for its action. If that burden is met, Plaintiffs must rebut the
Bank’s articulated reason by producing evidence from which one could reasonably
conclude that the Bank’s reasons for its actions were pretextual and that the real
reason for the particular adverse action was retaliation.
27
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 28 of 43
Both at the prima facie stage and at the stage of analysis after which the
defendant has articulated a legitimate, nonretaliatory reasons for its action, the
plaintiff is called on to show that the evidence demonstrates the requisite causal
connection. As for the causation prong of the prima facie test, the plaintiff must
show “that the protected activity and the adverse action were not wholly
unrelated.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir.
2020) (en banc) (quoting Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277–
78 (11th Cir. 2008)). A plaintiff can establish a prima facie causal link “by
showing close temporal proximity between the statutorily protected activity and
the adverse . . . action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007). It is true that “mere temporal proximity, without more, must be
very close.” Id. (internal quotation marks omitted). At the stage of summary
judgment proceedings in which the plaintiff must rebut the defendant’s proffered
nonretaliatory reason for its action, however, the plaintiff must meet the more
demanding “but for” test. Specifically, citing University of Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338, 362 (2013), Gogel noted that the Supreme
Court had held that the “but for” test is to be applied in determining whether a
plaintiff has ultimately shown the requisite causal connection for a Title VII
retaliation claim. Gogel, 967 F.3d at 1135 n.13. That is, the plaintiff must show
that, based on the evidence, one could reasonably infer that but for her protected
28
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 29 of 43
conduct the employer would not have taken the alleged adverse action. Further
explaining that we have “integrated this but-for standard into our summary
judgment analysis,” the Gogel court applied this standard at the pretext stage of its
inquiry.5 Id.
Plaintiff failed to meet the causal requirement at either the prima facie or the
pretext-rebuttal stage of the analysis. As to the prima facie stage, close temporal
proximity between the statutorily protected activity and the adverse employment
action can meet the causal requirement, but “mere temporal proximity, without
more, must be very close.” Thomas, 506 F.3d at 1364 (internal citations omitted).
And the converse is also true: “[I]n the absence of other evidence tending to show
causation, if there is a substantial delay between the protected expression and the
adverse action, the complaint of retaliation fails as a matter of law.” Id.In this case, the alleged “scorched-earth litigation” constituting the adverse
action occurred well after Ragan’s much earlier claim of sexual harassment. Yet,
even assuming that Plaintiffs made a prima facie case, one could not reasonably
infer that but for Ragan’s protected activity the Bank would not have engaged in
the particular litigation at issue. As the earlier factual recitation indicates, after the
5
Gogel assumed, however, that the standard for examining causation at the prima facie stage of
summary judgment analysis remains as described above: that is, a showing that the protected
activity and the adverse action were not wholly unrelated. Id. at 1135 & n.13.
29
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 30 of 43
failure of the Bank’s initial efforts to garnish Greg’s income, the well seemed to be
dry and the Bank had taken no further efforts to collect on its judgment.
Everything changed in January 2012 when Greg’s father died and Mike Tolar
mailed the Bank a copy of the original trust and the 2010 addendum. Given Greg’s
removal of himself as a beneficiary from what was labeled as an irrevocable trust,
the Bank official overseeing the earlier collection effort became concerned that
Greg was trying to shift his interest in the trust to someone else in an effort to
shelter assets he could use to satisfy the existing judgments. That concern
prompted the Bank to retain a bankruptcy partner at Bradley Arant to advise
whether this event created a potential pool of money from which the Bank might
be able to collect on the judgments whose value were now totaling approximately
$170,000. That attorney obviously thought so, as he entered a notice of
appearance in February 2012 in the old collection actions and subsequently filed
the AUFTA suit alleging a fraudulent transfer.
These events caught Greg’s attention who first inquired whether the Bank
would accept monthly payments. The Bank’s attorney invited a more specific
offer, to which Greg responded that he would settle the almost $170,000 owed for
$40,000: an offer that the Bank rejected until it could conduct more discovery. In
March, the Bank obtained a TRO to stop the family trust from distributing money
attributable to Greg or Reid’s beneficial interest. In response, Greg filed for
30
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 31 of 43
Chapter 13 bankruptcy. His proposed plan, however, was to pay the amount owed
over a fifty-four month period of time. Unhappy with that proposal—because it
suspected that the plan was a ruse to avoid ever paying the Bank and because the
proposal did not account for the lost-time value of the money owed—the Bank
filed lengthy objections.
Greg has repeatedly asserted that although he was always willing to pay the
bank what he owed, the Bank rebuffed those efforts and instead engaged in
protracted litigation to stall that effort simply to cause Greg unnecessary expense
and aggravation. Yet, his above-described acts do not support this assertion. Each
action taken by the Bank was in response to something that Greg had initiated—
specifically, the altering of the irrevocable trust and the filing of a Chapter 13
bankruptcy petition that promised to pay the judgments, but only over a period of
time so long that the trust funds to which Greg or Reid were entitled might become
exhausted. Ultimately, Greg used money from Reid’s interest in the trust to pay
the $170,000.
The record indicates that at each step the Bank was responding to Greg’s
actions. Further, none of the courts involved in these collections proceedings ever
ruled that the Bank’s litigation was frivolous or even unmeritorious. As noted, the
Bank obtained two TROs in connection with the AUFTA action. Indeed, rather
than actually litigate his present assertion that the AUFTA claim and bankruptcy
31
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 32 of 43
objections were without merit, Greg himself essentially acceded to the relief
sought in those actions. In short, we agree with the district court that Plaintiffs
have failed to produce evidence sufficient to support a reasonable inference that
but for Ragan’s claim of sexual harassment, the Bank would not have engaged in
the litigation that Plaintiffs characterize as excessive. Instead, the evidence
indicates that, in attempting to collect on judgments that Greg had at no time
challenged, the Bank took the steps necessary to do so. And while Greg
characterizes these steps as overzealous, it was his actions that prompted each of
the Bank’s responses. In short, Greg’s effort to use his daughter’s Title VII claim
against the Bank to gain immunity from his obligation to repay a legitimate debt
simply has no traction here. Therefore, we affirm the grant of summary judgment
on the retaliatory-litigation claim.
D. Claims Based on the Bank’s Decision to Stop Referring Legal
Work to Greg
In addition to retaliation claims based on the Bank’s attempts to collect on
the judgments against Greg, Greg also argues that the Bank illegally retaliated
against his daughter when it ceased farming out legal work to him. Again, to be
actionable under Title VII, Greg must first show that he is entitled, as a third-party
claimant, to pursue such a claim. Although we assumed without deciding that
Plaintiffs could act as third-party claimants with regard to their retaliatory-
litigation claim, we observed that it was very questionable whether Plaintiffs had
32
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 33 of 43
satisfied either prong of the Thompson test. That is, we expressed some doubt that,
applying Burlington, a reasonable employee would be dissuaded from exercising
her Title VII rights out of any concern that her employer might try to collect a
validly-owed debt from the employee’s relative. We were also uncertain that a
relative against whom collection measures were taken could be considered as lying
within the zone of interests protected by Title VII. If not within the zone of those
interests, the third party could not be characterized as an aggrieved party.
Here, in complaining that the Bank ceased referring him work, Greg has a
stronger argument as to the Burlington prong because one could reasonably
surmise that Ragan might have been dissuaded from engaging in protected conduct
had she thought that the Bank would stop sending legal business to her father. The
“aggrieved party” prong, however, is still an obstacle. Specifically, in Thompson,
the third-party plaintiff was an employee of the employer being sued and he was
fired by that employer. Here, though the bank did stop referring legal work to him,
Greg was never an employee, and was thus never fired. Moreover, in its holding
on the “persons aggrieved” prong of the analysis, the Supreme Court in Thompson
emphasized that the plaintiff there “was an employee” of the defendant, and that
“the purpose of Title VII is to protect employees from their employers’ unlawful
actions.” See Thompson, 562 U.S. at 178 (emphasis added).
33
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 34 of 43
In fact, a sister circuit has recently addressed the question whether a plaintiff
who was not employed by the employer in question could sue that employer for
retaliation as a third-party claimant. That court said no: a plaintiff must be an
employee of the defendant to qualify as a “person aggrieved” by retaliation under
the second prong of Thompson. See Simmons v. UBS Fin. Servs., Inc., 972 F.3d
664, 665 (5th Cir. 2020) (“As a nonemployee, [the plaintiff] asserts interests that
are not within the zone that Title VII protects.”), cert. denied, 134 S. Ct. 1382(Feb. 22, 2021).
As to the nature of the relationship between the third-party claimant and the
employer-defendant, the facts in Simmons are very similar to the facts here. In
Simmons, the plaintiff had a business relationship with the defendant, his
daughter’s employer. See id. The business relationship deteriorated after the
plaintiff’s daughter filed a pregnancy discrimination claim against the defendant.
See id. According to the plaintiff, the deterioration was a result of the defendant’s
deliberate effort to retaliate against his daughter by taking various adverse actions
against the plaintiff. See id. The plaintiff asserted a third-party Title VII
retaliation claim, which the Fifth Circuit rejected out of hand.
In rejecting the plaintiff’s claim, the Fifth Circuit found dispositive the fact
that Simmons was not an employee of the defendant-employer, whereas Thompson
had been a co-employee of his fiancée, who was the person who had engaged in
34
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 35 of 43
protected conduct. See Simmons, 972 F.3d at 668. Noting Thompson’s “focus on
Title VII’s employee-protection purpose,” the court in Simmons ultimately found
that distinction to be determinative, observing that:
It would be a remarkable extension of Thompson—and of Title VII
generally—to rule that a nonemployee has the right to sue. The zone of
interests that Title VII protects is limited to those in employment
relationships with the defendant.
Id.
Thus, the Simmons court held that the plaintiff “lack[ed] Title VII standing”
because he was not an employee of the defendant. Id. at 668. Were we to apply
the rationale of Simmons, none of the plaintiffs here—Greg included—would have
a right to sue Marion Bank for Title VII retaliation on either claim because
Plaintiffs are not—and never were—employees of the Bank. But once again,
because we conclude that the Bank is entitled to summary judgment on Greg’s
claim relating to the discontinuation of referral business based on a traditional
McDonnell Douglas analysis, we decline to reach the novel Thompson question
arising from this claim. We therefore assume without deciding that his third-party
claim can proceed.
Analyzing this claim under the McDonnell Douglas framework, we will first
assume that Greg has made a prima facie case. That is, his daughter, Ragan,
engaged in protected conduct, the Bank’s decision to stop referring business to
Greg was an adverse action, and the temporal connection between the two events
35
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 36 of 43
was close. Under McDonnell Douglas, the burden of production then shifts to the
Bank to articulate a neutral, nonretaliatory reason for its action. And the Bank has
done so by explaining that it stopped referring legal work to Greg because its
officers believed a conflict of interest had arisen as a result of Greg’s assistance to
Ragan with her own legal claim against the Bank. That explanation meets the
Bank’s “exceedingly light” burden at the second stage of the McDonnell Douglas
analysis to articulate a legitimate, nonretaliatory reason for its adverse action.
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1312 (11th Cir. 2016) (internal
quotation marks omitted). See also Comcast Corp. v. Nat’l Ass’n of African Am.-
Owned Media, 140 S. Ct. 1009, 1019 (2020) (“Under McDonnell Douglas’s terms .
. . only the burden of production ever shifts to the defendant, never the burden of
persuasion.”).
Because the Bank has articulated a legitimate, nonretaliatory reason for its
decision, the burden shifts to Greg “to come forward with evidence . . . sufficient
to permit a reasonable factfinder to conclude that the reasons given by [the Bank]
were not the real reasons” for its action, and that the real reason was retaliation.
Furcron, 843 F.3d at 1313 (internal quotation marks omitted). “Conclusory
allegations” of retaliation, “without more, are not sufficient to raise an inference of
pretext.” Id. (internal quotation marks omitted). At this stage of the analysis, Greg
can only survive summary judgment by presenting “sufficient evidence to
36
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 37 of 43
demonstrate the existence of a genuine issue of fact as to the truth” of each
legitimate explanation proffered by the Bank. Id. (quoting Combs v. Plantation
Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997)). More specifically, the evidence
must support a reasonable inference that the Bank’s asserted explanation is
“merely a pretext” to mask retaliation. Gogel, 967 F.3d at 1135 (quoting Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)). That is, Greg must rebut the Bank’s
explanation that the reason it stopped referring legal work to him was because the
Bank believed that Greg’s legal assistance to someone who was suing the Bank
placed him in an adversarial posture with the Bank: a position that the Bank felt
inappropriate for its own lawyer to take.
In assessing whether Greg has met his burden, we are mindful of our
directive on this point in Gogel. As this Court en banc stated in Gogel, “We have
repeatedly emphasized that provided the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it.” Id. at 1136 (citations and quotation marks omitted and alterations
accepted). Which means that “to establish pretext at the summary judgment stage,
a plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence. A
reason is not pretext for retaliation unless it is shown both that the reason was
37
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 38 of 43
false, and that retaliation was the real reason.” Id. (citations and quotation marks
omitted and alterations accepted) (emphasis in original). In short, “in determining
whether the plaintiff has met her burden to show pretext, we remain mindful that it
is the plaintiff’s burden to provide evidence from which one could reasonably
conclude that but for her alleged protected act, [the] employer would not have
[taken the adverse action].” Id. Further, “[p]rovided that the proffered reason is
one that might motivate a reasonable employer . . . the employee cannot succeed
by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
Greg has failed to produce any evidence of pretext to rebut the Bank’s
explanation for its decision to stop referring legal work to him in October 2008—
namely, the conflict of interest that the Bank’s officers believed to have arisen as a
result of Greg’s assistance with, and apparent advocacy for, a planned legal action
by Ragan that was adverse to the Bank. To the contrary, all the record evidence,
including the unrebutted testimony of Nichols and Greg’s own testimony, supports
the Bank’s explanation.
Contrary to Greg’s argument, the temporal proximity between Ragan’s
protected conduct and the Bank’s decision to stop referring work to Greg does not
establish pretext. See Gogel, 967 F.3d at 1137 n.15 (“While close temporal
proximity between the protected conduct and the adverse employment action can
38
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 39 of 43
establish pretext when coupled with other evidence, temporal proximity alone is
insufficient.”). 6 Nor does Greg satisfy his burden at the pretext stage of the inquiry
to rebut the Bank’s explanation merely by asserting his belief that he had not
become adversarial to the Bank as a result of his involvement in developing
Ragan’s sexual harassment claim.7 See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d
1253, 1266 (11th Cir. 2010) (“The inquiry into pretext centers on the employer’s
beliefs, not the employee’s beliefs and, to be blunt about it, not on reality as it
exists outside of the decision maker’s head.”). Indeed, Greg admits that he met
with the Bank’s board chair in September 2008 to discuss Ragan’s harassment
allegations, to ask that the Bank investigate Ragan’s claim, and to seek job
protections for Ragan while the investigation was ongoing. Greg also informed the
board chair during this same meeting that Ragan likely would be filing an EEOC
charge. Given this exchange, the Bank’s board chair and its officers
6
In support of his argument to the contrary, Greg cites case law for the principle that causation
can be shown by evidence that “the protected activity and the [adverse action] are not completely
unrelated.” But as noted supra, while traditionally applied at the prima facie stage, that is not the
operative standard once we get to the pretext stage of the McDonnell Douglas analysis. See
Gogel, 967 F.3d at 1135 (“To establish the necessary causation [at the pretext stage], a plaintiff
must demonstrate that her protected activity was a but-for cause of the alleged adverse action by
the employer.”).
7
In support of this assertion, Greg cites Ragan’s testimony in this case that she filed her EEOC
charge on her own and without Greg’s assistance. Yet, this testimony is contradicted by Ragan
and Greg’s testimony in the underlying Title VII case, and with the documentary evidence in this
case, including the November 2008 letter Greg sent to the EEOC in his capacity as “her legal
counsel.” At any rate, Greg has not provided evidence that calls into question the genuineness of
the Bank’s belief concerning Greg’s involvement in Ragan’s threatened litigation.
39
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 40 of 43
understandably concluded that Greg was providing assistance to Ragan in support
of a future sexual harassment claim against the Bank. Whether or not Greg
perceived his involvement in his daughter’s dispute with the Bank as a conflict of
interest, the Bank certainly did. See Alvarez, id; Gogel, 967 F.3d at 1136. And
based on that determination, the Bank decided to stop referring legal work to Greg.
In sum, the Bank met its burden of articulating a legitimate, nonretaliatory
reason for its decision to stop referring its own legal work to Greg, but Greg failed
to rebut the Bank’s proffered explanation with any evidence of pretext.
Accordingly, the Bank is entitled to summary judgment on Greg’s retaliation claim
based on the Bank’s termination of its working relationship with Greg.
II. Plaintiffs’ Claims against Bradley Arant
A. Standard of Review
We review the district court’s Rule 12(b)(6) dismissal of the claims against
Bradley Arant de novo, accepting the allegations in the complaint as true and
construing them in the light most favorable to Plaintiffs. See Chaparro v. Carnival
Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). Dismissal is warranted under Rule
12(b)(6) if the complaint does not “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). A claim is facially
40
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 41 of 43
plausible when it is supported by facts that permit a “reasonable inference that the
defendant is liable for the misconduct alleged.” Id.B. Analysis
In support of their Title VII retaliation claims against Bradley Arant,
Plaintiffs claim the law firm retaliated by initiating “excessively aggressive”
litigation against them, including various collection actions and an AUFTA claim.
The district court correctly dismissed these claims under Federal Rule 12(b)(6).
Title VII’s anti-retaliation provision prohibits retaliation by an employer “against
any of his employees” because the employee has participated in a Title VII
proceeding or opposed an employment practice made unlawful by Title VII. See
42 U.S.C. § 2000e-3(a). By its plain terms, this provision only protects an
employee from retaliation. See id. (emphasis added). Plaintiffs do not allege an
employment relationship between themselves and Bradley Arant, and it is apparent
from the face of the complaint that no such relationship existed.
As discussed above, the Supreme Court has held that Title VII’s retaliation
provision can give rise to a claim for third-party retaliation under certain
circumstances. See Thompson, 562 U.S. at 174–78. Under Thompson, an
employer can conceivably retaliate against an employee—and thus violate Title
VII—by taking adverse action against a close relative of the employee. See id.Plaintiffs here claim they were third-party victims of retaliation against Ragan, as a
41
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 42 of 43
result of Ragan’s decision to pursue a sexual harassment claim against Marion
Bank. But Plaintiffs do not allege that Ragan was an employee of Bradley Arant,
as would be required to recover under Title VII on a third-party retaliation theory.
See id.Plaintiffs argue that Bradley Arant can be liable for its alleged retaliation
against them under an agency theory, but that argument is unprecedented and
unsupported by any case law. It would be a novel proposition indeed to hold that
Bradley Arant’s legal representation of the Bank in debt collection litigation made
the law firm an agent with respect to the Bank’s employment practices. Nor can
Bradley Arant be liable under Title VII on a joint employer theory, as Plaintiffs
suggest, because there are no facts to suggest that Bradley Arant exercised any
control over Ragan’s employment with the Bank. See Llampallas v. Mini-Cirs.,
Lab, Inc., 163 F.3d 1236, 1244–45 (11th Cir. 1998) (noting that the joint employer
theory of liability is focused on “the degree of control an entity has over the
adverse employment decision on which the Title VII suit is based”).
Even under the third-party retaliation theory announced in Thompson, there
simply is no basis for holding Bradley Arant liable on the Title VII retaliation
claims asserted by Plaintiffs in this case. Accordingly, we affirm the district
court’s dismissal of the Title VII retaliation claims asserted against Bradley Arant
in this case.
42
USCA11 Case: 19-11546 Date Filed: 05/17/2021 Page: 43 of 43
CONCLUSION
For the reasons stated above, we affirm the district court’s order dismissing
Plaintiffs’ Title VII retaliation claims against Bradley Arant, as well as its order
granting summary judgment to Marion Bank on Plaintiffs’ Title VII claims against
the Bank.
AFFIRMED.
43