        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2     Abbott v. Crown Motor Co.                    No. 02-3365
     ELECTRONIC CITATION: 2003 FED App. 0388P (6th Cir.)
                 File Name: 03a0388p.06                      MOUL & BASIL, Columbus, Ohio, for Appellant. Robert P.
                                                             Foster, Rebecca J. Jakubcin, FISHER & PHILLIPS, Atlanta,
                                                             Georgia, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                                 _________________
               FOR THE SIXTH CIRCUIT
                 _________________                                                   OPINION
                                                                                 _________________
 DONALD ABBOTT,                     X
                                     -                          KENNEDY, Circuit Judge. Plaintiff appeals from the grant
         Plaintiff-Appellant,                                of summary judgment to his former employer, defendant
                                     -
                                     -  No. 02-3365          Crown Motor Company, Inc. (“Crown”), on his claims of
             v.                      -                       illegal retaliation in violation of Title VII of the Civil Rights
                                      >                      Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Ohio
                                     ,                       Revised Code § 4112.02 and of intentional infliction of
 CROWN MOTOR COMPANY ,               -
 INC.,                                                       emotional distress in violation of Ohio common law. For the
                                     -                       reasons explained below, we REVERSE the district court’s
            Defendant-Appellee. -                            award of summary judgment to defendant on plaintiff’s
                                     -                       federal and state claims of illegal retaliation, AFFIRM
                                    N                        summary judgment to defendant on plaintiff’s state claim of
        Appeal from the United States District Court         intentional infliction of emotional distress, and REMAND to
       for the Southern District of Ohio at Columbus.        the district court for proceedings consistent with this opinion.
     No. 99-01275—George C. Smith, District Judge.
                                                               We review the district court’s order granting summary
               Argued: September 11, 2003                    judgment de novo. Williams v. Mehra, 186 F.3d 685, 689
                                                             (6th Cir. 1999). Summary judgment is proper “if the
         Decided and Filed: November 3, 2003                 pleadings, depositions, answers to interrogatories, and
                                                             admissions on file, together with affidavits, if any, show that
 Before: KENNEDY, GUY, and DAUGHTREY, Circuit                there is no genuine issue of material fact and that the moving
                   Judges.                                   party is entitled to a judgment as a matter of law.” Fed. R.
                                                             Civ. P. 56(c). We must accept the non-moving party’s
                   _________________                         evidence, and draw all justifiable inferences in his favor.
                                                             Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). A
                        COUNSEL                              “material” fact is one “that might affect the outcome of the
                                                             suit.” Id. at 248. A “genuine” issue exists if “the evidence is
ARGUED: Brian K. Murphy, MURRAY, MURPHY,                     such that a reasonable jury could return a verdict for the
MOUL & BASIL, Columbus, Ohio, for Appellant. Robert P.       nonmoving party.” Id.
Foster, FISHER & PHILLIPS, Atlanta, Georgia, for Appellee.
ON BRIEF: Geoffrey J. Moul, MURRAY, MURPHY,

                             1
No. 02-3365                      Abbott v. Crown Motor Co.               3    4     Abbott v. Crown Motor Co.                    No. 02-3365

                  I. Illegal Retaliation Claims                               witnesses to come forward. On September 22, 1997, plaintiff
                                                                              informed Morrison that he had witnessed Purnell’s use of
                                A. Facts                                      racial epithets and that he would testify to it in a court of law
                                                                              in support of Crump’s race discrimination claim against
   Defendant Crown, which sells and repairs cars, hired                       Crown. According to plaintiff, while he was discussing his
plaintiff Abbott, a white male, as an automotive technician in                grievances with Morrison, Morrison was “very attentive, very
June of 1995.1 In March of 1996, Crown hired Donald                           abiding,” in “some agreement” with plaintiff, and “pretty well
Crump, a black male, as an automotive detailer. Scott                         shocked” about Purnell’s use of racial slurs. Yet, plaintiff
Morrison, the Parts & Services Director, and Jim Purnell, the                 also described Morrison, after he had learned that plaintiff
work dispatcher, both white males, were Crump’s and                           would testify about the discrimination, as being “amazed,
plaintiff’s immediate superiors. On July 8, 1997, Crump filed                 befuddled, surprised, disbelieving,” gritting his teeth, and
a complaint with the Ohio Civil Rights Commission                             expressing contempt. Morrison told plaintiff that he would
(OCRC)/Equal Employment Opportunity Commission                                take care of the situation. Morrison fired Purnell the
(EEOC), alleging that, since June 2, 1997, Purnell and                        following day. In March of 1998, approximately eight
Morrison had been harassing him and that Purnell had denied                   months after filing the charge, Crump moved to withdraw his
Crump work hours. With respect to the harassment, in                          OCRC/EEOC charge against Crown. According to OCRC’s
particular, Crump alleged that Purnell used various racial                    letter granting his withdrawal, dated March 12, 1998, Crump
epithets and that Morrison told a joke that disparaged blacks.                no longer wished to pursue the matter and had stated “that the
Crump informed plaintiff that Crump had identified plaintiff                  racial harassment and derogatory remarks have ceased.”
to the OCRC/EEOC as a witness to the race discrimination,                     Sometime in July of 1998, approximately eleven months after
and that the OCRC might contact plaintiff. After the OCRC                     Morrison fired Purnell, Crump tendered his resignation to
served Crump’s formal charge upon Crown, Morrison                             Crown, subject to two weeks’ notice, and took a job with
launched an investigation into Crump’s allegation that Purnell                Coca Cola at a higher rate of pay. The parties dispute
had racially harassed him. Crump testified that, upon                         whether Crown’s alleged retaliation against Crump was a
receiving a copy of Crump’s OCRC/EEOC charge, Morrison                        factor in his resignation.
advised Crump that he had better watch his back. Plaintiff
testified that Crump had warned him that Morrison had told                       On August 28, 1998, defendant discharged plaintiff.
Crump that Morrison would retaliate against anyone who was                    Plaintiff asserts that his discharge was in retaliation for his
trying to disrupt the shop’s operations.                                      having come forward to support Crump’s discrimination
                                                                              claim. In support of that theory, he points to various
   About a week after receiving the charge, Morrison held a                   statements made to Crump indicating Crown’s continued
Service Department meeting at which he announced that                         displeasure with Crump’s having filed the OCRC/EEOC
allegations of discrimination had been made and asked any                     charge as well as Morrison’s continued discriminatory
                                                                              treatment of Crump. Plaintiff testified that, approximately
                                                                              one month before his termination, Millard Ripley, Crown’s
    1
      Under Federal Rule of Appellate Procedure 10, we must disregard         Managing Partner, held “a shop meeting at which he
parties’ references to evidence that is not in the district court record.     threatened that it was inappropriate for employees to take
W hile that reco rd includes plaintiff’s deposition, it includes only those   complaints outside of Crown Motors.” Crump also testified
limited portions of Crump’s and Mo rrison’s depositions that are attached
to the summary judgment memoranda.                                            that Ripley had stated that “all complaints regarding
No. 02-3365                  Abbott v. Crown Motor Co.          5    6       Abbott v. Crown Motor Co.                       No. 02-3365

employment should be made internally.” According to                  discharge plaintiff. Morrison told plaintiff that he was firing
Crump, after that meeting, which occurred on the day that            him for bringing “the morale of the shop down.” Plaintiff
Crump tendered his resignation, Ripley told Crump that he            denies ever raising his voice to Morrison; threatening
should not have gone behind Crown’s back to file the OCRC            Morrison; expressing “rage or any other emotions that could
charge and that Crump should have taken his complaint                be considered confrontational”; storming into Morrison’s
directly to Morrison instead. In an affidavit filed before           office; slamming the door; or giving Morrison an ultimatum
Crump’s deposition, Crump stated that, around his last day of        to get the lift “fixed or else.” On the day after Morrison fired
employment, Morrison reminded Crump that he had told                 plaintiff, Greg Wade, whom Morrison had hired earlier in
Crump that he would “get back at those who had supported             June of 1998, had started work in the service bay made
the charge of discrimination against he and Crown.”                  available only by plaintiff’s termination. According to
                                                                     plaintiff, a few days after his termination, Ripley informed
   The parties dispute many of the events preceding the date         plaintiff that Morrison had fired him because plaintiff had put
of plaintiff’s termination. For approximately four weeks             his nose in other people’s business. Plaintiff testified that he
before plaintiff was fired, the lift in plaintiff’s bay was out of   understood this to mean that Morrison fired him for his
commission. Many of plaintiff’s assigned jobs required the           involvement in Crump’s discrimination complaint because
use of a lift. Morrison told plaintiff that he should wheel his      “[t]hat was the only thing that . . . [plaintiff] had his nose in.”
tool box to a substitute lift across the garage, and that his lift
would be repaired.           Morrison testified that plaintiff         Plaintiff also contends that, after his unlawful termination,
complained to him every day about the lift, and was carting          Morrison further retaliated against plaintiff for his
his tool box back and forth and “throwing his tools around.”         involvement in Crump’s OCRC/EEOC charge by giving a
Plaintiff testified that he complained only about once a week,       negative recommendation of him to a potential employer.
and that he never threw his tools. Morrison testified that           Crown conceded that Morrison had informed a potential
plaintiff had engaged in other disruptive conduct, which             employer that he had terminated plaintiff “during the busy
plaintiff denies. The parties also dispute what occurred on the      season” and that plaintiff “was not eligible for rehire.” As
date that plaintiff was fired. Morrison testified that plaintiff     Morrison admitted, it violated company policy to provide
demanded that he be sent home with pay until the lift was            such a reference.2
repaired. Crown later informed the Bureau of Worker’s
Compensation that it had discharged plaintiff for                                                B. Analysis
insubordination. Plaintiff testified that, at the end of the
fourth week, Morrison had promised that the lift would be               “Summary judgment is proper where the plaintiff fails to
repaired over the weekend. On Monday when it was still               present evidence sufficient to create a dispute of material fact
broken, plaintiff went to Morrison’s office to find out when         with respect to an element of his retaliation claim.” Mullhall
the lift would be repaired. Plaintiff testified that Morrison        v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002). Because the
immediately became angry and asked whether plaintiff                 Ohio Supreme Court has held that an action under Ohio
wanted Morrison to fix the lift. Plaintiff answered that he did
not expect Morrison to fix it, but that he had to come to                2
Morrison about it. Morrison then replied that they did not                Crown’s emp loyee handboo k pro vides that the employee “must
want plaintiff to work there any more, stating that he had           consent in writing to authorize [Crown’s] responses” to inquiries from
                                                                     prospective employers, and that, absent such consent, Crown’s policy is
already spoken with Ripley and received his permission to            “simply to confirm the term of emplo yment and jo b title.”
No. 02-3365                  Abbott v. Crown Motor Co.           7    8     Abbott v. Crown Motor Co.                    No. 02-3365

Revised Code § 4112 mirrors that under Title VII, Plumbers            this protected activity; 3) the defendant subsequently took an
& Steamfitters Joint Apprenticeship Comm. v. Ohio Civil               employment action adverse to the plaintiff; and 4) a causal
Rights Comm’n, 421 N.E.2d 128, 196 (Ohio 1981), we will               connection between the protected activity and the adverse
analyze plaintiff’s state and federal claims of illegal               employment action exists. Strouss v. Michigan Dep’t of
retaliation solely under Title VII. 42 U.S.C. § 2000e-3(a) of         Corr., 250 F.3d 336, 342 (6th Cir. 2001); Nguyen v. City of
Title VII provides:                                                   Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). “The burden
                                                                      of establishing a prima facie case in a retaliation action is not
  It shall be an unlawful employment practice for an                  onerous, but one easily met.” Nguyen, 229 F.3d at 563; see
  employer to discriminate against any of his employees               also EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th
  . . . because [the employee] has opposed any practice               Cir. 1997) (Establishing a prima facie case entails a lower
  made an unlawful employment practice by this                        burden of proof than that which is required to win a judgment
  subchapter, or because he has made a charge, testified,             on the merits.). “After proving the existence of a prima facie
  assisted, or participated in any manner in an                       case, the burden [of production] shifts to the defendant to
  investigation, proceeding, or hearing under this                    articulate a legitimate, non-discriminatory reason for the
  subchapter.                                                         adverse action.” Nguyen, 229 F.3d at 562. If the defendant
                                                                      meets this burden, the plaintiff must then demonstrate by a
In an action under Title VII, the plaintiff may prove unlawful        preponderance of the evidence that the proffered reason was
retaliation by presenting direct evidence of such retaliation or      a mere pretext for discrimination by establishing that the
by establishing a prima facie case under the McDonnell-               proffered reason: 1) has no basis in fact; 2) did not actually
Douglas framework. See Swierkiewicz v. Sorema, 534 U.S.               motivate the adverse action; or 3) was insufficient to motivate
506, 511 (2002); Laderach v. U-Haul of Northwestern Ohio,             the adverse action. Manzer v. Diamond Shamrock Chems.
207 F.3d 825, 829 (6th Cir. 2000). Direct evidence is that            Co., 29 F.3d 1078, 1084 (6th Cir. 1994). If the plaintiff
evidence which, if believed, requires the conclusion that             demonstrates that the defendant’s proffered, non-
unlawful retaliation was a motivating factor in the employer’s        discriminatory reason is a pretext, then the fact finder may
action. See Laderach, 207 F.3d at 829. “[D]irect evidence             infer unlawful retaliation. See Kline v. Tenn. Valley Auth.,
proves the existence of a fact without any inferences or              128 F.3d 337, 344 (6th Cir. 1998); Virostek v. Liberty
presumptions.” Norbuta v. Loctite Corp., 181 F.3d 102, *2             Township Police Dep’t/Trustees, 14 Fed.Appx. 493, 504,
(6th Cir. 1999). Here, plaintiff’s tendered evidence is not           2001 WL 814933, at *7 (6th Cir. 2001). Throughout the
direct because, even if it were believed, it would not require        entire McDonnell-Douglas framework, the plaintiff bears the
the conclusion that defendant unlawfully retaliated against           burden of persuasion. St. Mary’s Honor Ctr. v. Hicks, 509
plaintiff; rather, one could draw that conclusion only by             U.S. 502, 511 (1993).
making a series of inferences arising from plaintiff’s
evidence. Consequently, plaintiff must establish a prima                Here, plaintiff has established the first three prongs of a
facie case of unlawful retaliation for his Title VII action to lie.   prima facie case of unlawful retaliation. Title VII broadly
                                                                      protects an employee’s participation “in any manner in an
  To establish a prima facie case of unlawful retaliation             investigation, proceeding, or hearing under . . . [Title VII].”
under Title VII, the plaintiff must demonstrate by a                  42 U.S.C. § 2000e-3(a); Booker v. Brown & Williamson
preponderance of the evidence that: 1) he engaged in activity         Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (“The
that Title VII protects; 2) defendant knew that he engaged in         ‘exceptionally broad protection’ of the participation clause
No. 02-3365                 Abbott v. Crown Motor Co.         9    10    Abbott v. Crown Motor Co.                    No. 02-3365

extends to persons who have ‘participated in any manner’ in        See Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999)
Title VII proceedings.”). This Circuit “has not directly           (holding that “a plaintiff must identify a materially adverse
addressed the question of whether participation in internal        change in the terms and conditions of his employment to state
investigations constitutes protected activity under the            a claim for retaliation under Title VII,” and suggesting that
participation clause.” Warren v. Ohio Dep’t of Public Safety,      termination would be a sufficient, adverse employment
24 Fed.Appx. 259, 265, 2001 WL 1216979, at *3 (6th Cir.            action); Robinson v. Shell Oil Co., 519 U.S. 337, 339, 346
2001); see Davis v. Rich Prods. Corp., 11 Fed.Appx. 441,           (1997) (holding that the term “employees,” as used in Title
445, 2001 WL 392036, at *3 (6th Cir. 2001). Today, we hold         VII’s anti-retaliation provision, includes former employees
that Title VII protects an employee’s participation in an          bringing suit for retaliatory, post-employment actions, such
employer’s internal investigation into allegations of unlawful     as a negative reference to a potential employer).
discrimination where that investigation occurs pursuant to a
pending EEOC charge. See EEOC v. Total Sys. Serv., Inc.,             To establish the causal connection that the fourth prong
221 F.3d 1171, 1174 n.2 (11th Cir. 2000) (The participation        requires, the plaintiff must produce sufficient evidence from
clause protects an employee’s activities that “occur in            which one could draw an inference that the employer would
conjunction with or after the filing of a formal charge with the   not have taken the adverse action against the plaintiff had the
EEOC,” not an employee’s participation “in an employer’s           plaintiff not engaged in activity that Title VII protects. See
internal, in-house investigation, conducted apart from a           Nguyen, 229 F.3d at 563; Avery Dennison, 104 F.3d at 861
formal charge with the EEOC”; at a minimum, an employee            (holding that a plaintiff need only present “‘sufficient
must have filed a charge with the EEOC or otherwise                evidence to raise the inference that her protected activity was
instigated proceedings under Title VII.); Brower v. Runyon,        the likely reason for the adverse action’” to establish the
178 F.3d 1002, 1006 (8th Cir. 1999) (For activity to receive       causation element). The district court granted summary
protection under the participation clause, there must be, at a     judgment to defendant on plaintiff’s unlawful retaliation
minimum, “factual allegations of discrimination against a          claims on the ground that plaintiff had not presented
member of a protected group and the beginning of a                 sufficient evidence “to permit the inference that plaintiff
proceeding or investigation under Title VII.”); Vasconcelos        would not have been fired but for his participation in Crump’s
v. Meese, 907 F.2d 111, 113 (9th Cir. 1990) (Plaintiff did not     OCRC charge” and, thus, that plaintiff had failed to
engage in protected activity when she lied during an Internal      demonstrate “a prima facie case of retaliatory discharge.” In
Affairs Investigation by the Marshal’s Service, not during any     particular, the court relied on the fact that plaintiff was fired
EEOC investigation, because Title VII protects only                approximately eleven months after he disclosed that he would
“[a]ccusations made in the context of charges before the           support Crump’s discrimination charge. However, two of
Commission.”). Plaintiff thus established that he engaged in       Crown’s statements at or near plaintiff’s discharge satisfy the
protected activity when, in Crown’s internal investigation into    element of causation. Crump’s affidavit states that, on
the EEOC charge pending against it, he notified Morrison that      Crump’s last day of work, Morrison advised Crump that
he had witnessed Purnell’s racial discrimination and would         Morrison would “get back at those who had supported the
testify to it in a court of law. Since plaintiff made this         charge of discrimination against he and Crown.” Crump’s
disclosure to Morrison, Crown knew of this participation.          last day of work was July 26th, and plaintiff was fired on
After plaintiff engaged in the protected activity, Crown           August 28th. In addition, plaintiff testified that, only a few
terminated plaintiff and gave him a poor employment                days after Morrison terminated him, Ripley informed plaintiff
reference, thereby taking employment actions adverse to him.       that Morrison had fired plaintiff because he had put his nose
No. 02-3365                 Abbott v. Crown Motor Co.        11    12       Abbott v. Crown Motor Co.                          No. 02-3365

in other people’s business. As plaintiff testified, he             burden of production.3 Consequently, having no duty to
understood this to mean that Morrison fired him for his            show pretext at this point, plaintiff has not failed to create a
involvement in Crump’s discrimination suit as “[t]hat was the      genuine issue of material fact “with respect to an element of
only thing that . . . [he] had his nose in.” These two pieces of   his retaliation claim” so as to render summary judgment for
evidence, construed in the light most favorable to plaintiff,      defendant proper. Mullhall, 287 F.3d at 551. In sum, we
create a genuine issue of material fact as to whether Crown        REVERSE the district court’s award of summary judgment to
would have terminated plaintiff had plaintiff not participated     defendant on plaintiff’s state and federal claims of unlawful
in Crump’s EEOC charge. Furthermore, Morrison gave                 retaliation.
plaintiff what a reasonable juror could construe as a negative
job reference in violation of company policy. This creates a        II. Intentional Infliction of Emotional Distress Claim
genuine issue of material fact as to whether Crown would
have given plaintiff such an unfavorable job recommendation           Plaintiff claims that defendant intentionally inflicted severe
had plaintiff not engaged in protected activity. In sum, we        emotional distress upon plaintiff when defendant, knowing of
find that plaintiff has offered evidence to establish a prima      plaintiff’s poor heart condition, terminated him and then gave
facie case of unlawful retaliation.                                him a negative job reference in retaliation for plaintiff’s
                                                                   involvement in Crump’s discrimination charge. Under Ohio
   Although defendant has articulated a legitimate, non-           law, a cause of action for intentional infliction of emotional
discriminatory reason for terminating plaintiff–plaintiff’s        distress may lie only where defendant’s conduct is “extreme
alleged insubordination and threatening behavior regarding         and outrageous” in that it goes “beyond all possible bounds of
his broken lift–, both plaintiff’s testimony and that of another   decency,” is “atrocious,” and is “utterly intolerable in a
witness dispute this proffered reason. Thus, summary               civilized community”; conduct that is merely malicious,
judgment for defendant on plaintiff’s retaliatory discharge        aggravated, or intentional or that entails an intent that is
claim was improper. See Manzer, 29 F.3d at 1078 (holding           tortious or criminal is insufficient to render it actionable.
that plaintiff need not introduce evidence in addition to his      Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983).
prima facie case to demonstrate pretext and to create a            Even assuming the truth of plaintiff’s allegations, no rational
permissible inference of illegal discrimination where he           juror could find that this alleged conduct rises to the level of
demonstrates that: 1) the proffered reason has no basis in         “extreme and outrageous” under Ohio case law. See McNeil
fact–i.e. it never actually happened; or 2) the reason was         v. Case Western Reserve Univ., 664 N.E.2d 973, 977 (Ohio
insufficient to motivate the termination–i.e. the employer did     Ct. App. 1995) (finding insufficiently outrageous as a matter
not terminate another employee engaging in conduct similar         of law defendant’s alleged conduct of harassing plaintiff to
to that which the employer contends motivated plaintiff’s
termination); Kline, 128 F.3d at 344 (holding that, if plaintiff
demonstrates that defendant’s proffered, non-discriminatory             3
                                                                         W e note that it is unclear whether defend ant sought summary
reason is a pretext, then the fact finder may infer unlawful       judgment on plaintiff’s claim of unlawful retaliation based on a negative
retaliation).    Regarding plaintiff’s claim of unlawful           job reference as its memorandum in suppo rt of summary judgment
retaliation based upon a negative employment reference,            discusses only plaintiff’s retaliatory discharge claim. Although the
defendant did not proffer a legitimate, non-discriminatory         district court granted defendant summary judgment on all of plaintiff’s
reason for this adverse employment action so as to meet its        claims, presumably including plaintiff’s claim o f unlawful re taliation via
                                                                   a negative job reference, the d istrict court analyzed only plaintiff’s
                                                                   retaliatory discharge claim.
No. 02-3365                 Abbott v. Crown Motor Co.        13

retire, urging plaintiff’s daughter to persuade plaintiff to
retire, leading co-workers to believe that plaintiff had retired
when she simply had taken a few days off, and intentionally
locking her “out of the room in which she kept her personal
belongings”); Kerr v. Proctor & Gamble, No. 88AP-629,
1989 WL 11961, at **1-4 (Ohio Ct. App. 1989) (holding that
defendant’s alleged conduct was not “extreme and
outrageous” as a matter of law where defendant made daily
hostile phone calls to plaintiff belittling her and threatening
that plaintiff would receive a poor job recommendation and
no health insurance unless she resigned). Thus, we affirm the
district court’s award of summary judgment to defendant on
plaintiff’s state claim of intentional infliction of emotional
distress.
  In sum, we REVERSE the district court’s award of
summary judgment to defendant on plaintiff’s state and
federal claims of unlawful retaliation, AFFIRM the district
court’s award of summary judgment to defendant on
plaintiff’s state claim of intentional infliction of emotional
distress, and REMAND for further proceedings consistent
with this opinion.
