           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 08a0303n.06
                        Filed: May 29, 2008

                                          No. 06-2236

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT

TROY OGLE,                                    )
                                              )
       Plaintiff-Appellant                    )
                                              )
v.                                            )          ON APPEAL FROM THE
                                              )          UNITED STATES DISTRICT
RICK HOCKER,                                  )          COURT FOR THE EASTERN
                                              )          DISTRICT OF MICHIGAN,
       Defendant-Appellee                     )          SOUTHERN DIVISION



       Before: COLE and COOK, Circuit Judges; and MILLS, District Judge.*



       MILLS, District Judge.

       Troy Ogle brought defamation and intentional infliction of emotional distress

claims against Rick Hocker based on statements he made concerning Ogle’s behavior

during a trip abroad.

       The trial court granted Hocker’s motion for summary judgment and Ogle

appealed.

       *
          The Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
      We reverse and remand for further proceedings.

                               I. BACKGROUND

      A.     Factual History

      Plaintiff Troy Ogle (“Ogle”) is a former international evangelist and ordained

bishop who ministered in the Church of God (“COG”) for over two decades.

Defendant Rick Hocker (“Hocker”), also a COG bishop, works as a senior pastor at

Virginia Beach COG.

      In 1999, Hocker attended a prayer conference in Virginia where he first met

Ogle. Both men met again at camp meetings in the summer of 1999 and 2000. At

these two events, Hocker worked as the service coordinator and chairman of the

music committee while Ogle appeared as a guest speaker.           Ogle’s preaching

impressed Hocker and, following the last of these meetings, he accepted an invitation

to accompany Ogle on a ten day ministry trip to Belgium.

      On June 27, 2001, Hocker and Ogle flew to Belgium. The bishops spent most

of the flight talking. At first the conversation was “prayerful” towards Belgium, but

the topic soon turned to intimacy with God and from there to “intimacy between

brothers, as well, between people.” Ogle made several statements that Hocker later

thought “strange,” but he did not tell Ogle that the conversation offended him.

      Once in Belgium, Ogle and Hocker went to their hotel room. Ogle approached

                                         2
Hocker and, stating “In the love of Christ my brother,” he kissed Hocker on the lips.

The kiss was with a closed mouth and did not last long. Hocker also claims, though

Ogle denies this, that Ogle appeared nude in the bathroom doorway with a partially

erect penis. After these events, Ogle invited Hocker to join him for a prayer on the

floor of their room. During this prayer, Ogle engaged in some sort of contact with

Hocker. Hocker describes the contact as attempting to pull him into a sexual position,

whereas Ogle claims that he was symbolically holding Hocker in his arms. Several

hours later, Hocker informed Ogle that he was returning home. Hocker reassured

Ogle that his decision to return was not a result of his actions. The next day, Hocker

flew back to the United States.

      On August 1, 2001, Hocker wrote a letter to his presiding bishop in the COG

concerning Ogle’s behavior.1 Hocker asked that his allegations be kept confidential.

In spite of this request, Hocker, though not mentioning Ogle by name, incorporated

the incident into his August 5, 2001 sermons. At the 8:30 a.m. service, Hocker stated:

      And as I get on the plane, he begins to talk to me and I begin to realize
      that his doctrine is corrupt . . . . And when I get there [Belgium], he
      begins to manifest issues of homosexuality. He wants me to be his
      really good spiritual friend, quote unquote. . . . I see how easily the
      church can be tricked . . . . Now you listen to this - - we must protect
      ourselves as the church of the living God. We must protect from
      heresies and false doctrines and false prophets who would lead the very

      1
          Ogle does not claim that this letter was defamatory.
                                            3
       elect away.

Returning to this theme in his 11:00 a.m. service, Hocker repeated:

       And I began to perceive that his doctrine was corrupt. . . . [H]e also
       wanted me to become his very good friend . . . . And I’m waiting on him
       to come back now from Belgium to face me, because I plan to face him
       in a counsel of ordained bishops and declare the man to be a heretic. . .
       . Because the enemy tried to take prophesy and the word of God and
       mesmerize me and take me out.

       Finally, at the 6:00 p.m. service, Hocker declared: “God set me up. Put me on

a plane set me next to a false prophet. . . . I want [sic] go into all of it, but man, I’ll

tell you, if ever I was in the wilderness looking at the devil face to face I was.” In

addition to making these statements during his sermons, Hocker repeated many of the

allegations against Ogle to a number of individuals on at least seventeen occasions.

       Since Hocker’s initial letter constituted a formal charge in the COG, a

committee was convened. An investigation ensued, eventually resulting in the

suspension of Ogle’s COG license for “unbecoming ministerial conduct.” Although

the Michigan COG State Council later approved Ogle’s reinstatement, the

International Executive Council halted the reinstatement process.

       B.     Procedural History

       Ogle first brought an action against the COG and several individuals affiliated

with it, including Hocker. In that suit, Ogle attacked various aspects of the COG’s



                                            4
administrative process and the actions of COG affiliates during that process.

Although Ogle brought an intentional infliction of emotional distress claim against

Hocker, he refrained from pursuing a defamation action. No mention was made of

Hocker’s sermon statements or his comments to others outside the church. The

district court found that it lacked jurisdiction over the case because of the First

Amendment’s ecclesiastical abstention doctrine, Ogle v. Church of God, No. 1:03-cv-

203 (E.D. Tenn. Sept. 9, 2004), and the appellate court affirmed, Ogle v. Church of

God, 153 Fed. Appx. 371 (6th Cir. 2005).

      While the action against the COG was proceeding, Ogle filed the current suit

against Hocker based on theories of defamation and intentional infliction of

emotional distress (“IIED”) arising out of Hocker’s statements to his congregation

and others. Refusing to apply the ecclesiastical abstention doctrine, the district court

nevertheless granted Hocker’s motion for summary judgment on the defamation claim

after determining that the statements were opinions protected under the First

Amendment. Ogle v. Hocker, 2005 WL 1349111 (E.D. Mich. March 11, 2005). Ogle

appealed the grant of summary judgment, but we dismissed the appeal, sua sponte,

on jurisdictional grounds because the trial court had not ruled on the IIED claim.

Ogle v. Hocker, 179 Fed. Appx. 314, 314-15 (6th Cir. 2006).

      On remand, Hocker filed a new motion for summary judgment. Holding that

                                           5
the IIED claim was merely derivative of the defamation claim, the trial court again

granted summary judgment. Ogle v. Hocker, No. 02-73200 (E.D. Mich. Aug. 25,

2006). Ogle now appeals the grant of summary judgment on both the defamation and

IIED claims.

                          II. STANDARD OF REVIEW

      We review de novo grants of summary judgment under Federal Rule of Civil

Procedure 56, Lautermilch v. Findlay City Sch., 314 F.3d 271, 274 (6th Cir. 2003)),

and analyze summary judgment rulings using the standards employed by the district

court, Qualicare-Walsh, Inc. v. Ward, 947 F.2d 823, 825 (6th Cir. 1991). Therefore,

the evidence and all reasonable inferences from it are construed in the light most

favorable to Ogle. Doe v. Michigan Dep’t. of State Police, 490 F.3d 491, 497 (6th

Cir. 2007) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986)). Summary judgment is properly granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                   III. ANALYSIS

      A.       Church Autonomy Doctrine / Ecclesiastical Abstention

      Before venturing into the merits, we must determine whether secular court

                                           6
review of Ogle’s claims complies with the dictates of the First Amendment.2 The

First Amendment provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.

amend I. This clause applies to the judiciary as well as the legislature, Kreshik v. St.

Nicholas Cathedral, 363 U.S. 190, 191, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960), and

limits the power of the courts to hear suits “whenever the questions of discipline, or

of faith, or ecclesiastical rule, custom, or law have been decided by . . . church

judicatories . . . .” Watson v. Jones, 80 U.S. (13 Wall.) 679, 727, 20 L. Ed. 666

(1871); see also Serbian E. Orthodox Diocese for U.S. of Am. and Can., 426 U.S.

696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976). Courts have variously termed this

restraint as the church autonomy doctrine or ecclesiastical abstention.

       Hocker points to a particular branch of the church autonomy doctrine that

prohibits courts from reviewing the decisions of an ecclesiastical body relating to the

employment of a minister. See, e.g., Lewis v. Seventh Day Adventists Lake Region


       2
         Although not raised here, Hocker previously argued for the application of res judicata
based on Ogle’s prior suit against the COG. While the Court may raise res judicata issues sua
sponte, see Hutcherson v. Lauderdale County, Tenn., 326 F.3d 747, 757 (6th Cir. 2003) (citing
Arizona v. California, 530 U.S. 392, 412, 120 S. Ct. 2304, 147 L. Ed. 2d 374 (2000)), we note
that application of the doctrine in this case would be inappropriate since Ogle’s allegedly
defamatory statements (made outside of the administrative proceedings) constitute separate and
distinct injuries, see Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994)
(refusing to apply res judicata where “[t]he two claims were not simply two separate grounds for
recovery, but instead stemmed from entirely separate and discrete events and wrongful acts by
the [defendant].”).

                                               7
Conference, 978 F.2d 940, 942 (6th Cir. 1992). Indeed, Ogle’s first suit against the

COG floundered on this very rule. In this case, however, Hocker’s statements were

unrelated to any pending employment decision, and thus these cases are inapposite.3

       Hocker also invokes broader aspects of the church autonomy doctrine. In

particular, he argues that secular court review of Ogle’s claims would impermissibly

impinge upon internal ecclesiastical matters since the case involves a dispute between

COG ministers regarding a sermon. Whether a secular court may hear a tort suit

despite the church autonomy doctrine turns on the availability of secular standards

and the ability of a court to resolve the controversy without reference to religious

doctrine.4 See Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004);

Sanders v. Casa View Baptist Church, 134 F.3d 331, 336-38 (5th Cir. 1998). In



       3
         To the extent Ogle seeks damages based on the COG’s decision to suspend him or the
loss of his reputation within the COG, Ogle’s claims might be barred by this rule. An inquiry
into these damages might require consideration of whether the defamation caused the COG’s
employment actions, thereby inviting an exploration of the church’s motives. A secular court
cannot take this step.
       4
         It should be noted that this is not a clergy malpractice claim, but rather an intentional tort
suit. Most courts have agreed that clergy malpractice claims, whether labeled as such or as
negligence suits, are improper, because they would force the courts to fashion a religiously based
standard of care for church officials. See, e.g., Sanders v. Casa View Baptist Church, 134 F.3d
331, 336-37 (5th Cir. 1998). These concerns disappear, however, where a pastor or other
religious figure is offering secular services, since secular standards can be applied. Id. at 337.
Although this case involves allegations of intentional torts, the same underlying concern (i.e.,
avoiding interference with ecclesiastical affairs) applies in both contexts.



                                                   8
Elvig, for example, an ordained minister was allowed to pursue her sexual harassment

and hostile work environment claims against her church. Elvig, 375 F.3d at 959. The

court, while rejecting any church liability for employment actions, held that the

plaintiff’s claims could be resolved by a “purely secular inquiry.” Id. Even so, the

court warned that if the church claimed that the sexual harassment was doctrinal,

jurisdiction would be foreclosed by the First Amendment. Id. However, since the

church in that case had not claimed doctrinal status for the alleged actions, the court

allowed the case to proceed. Id.

      Like the inquiry into a hostile work environment in Elvig, the laws of

defamation and intentional infliction of emotional distress (when based on

defamation) can be applied based solely on secular rules. See Dausch v. Rykse, 52

F.3d 1425, 1433 (7th Cir. 1994) (“Tort claims for behavior by a cleric that do[] not

require the examination of religious doctrine are cognizable.”). Thus, the relevant

question before us is whether the court would interfere with any matters of church

doctrine or practice by ruling on this case.

      Hocker’s claim for protection under the church autonomy doctrine derives

mainly from context: the dispute was between two COG bishops and the allegedly

defamatory statements occurred, in part, during sermons. While we are solicitous of

protecting religious services from interference, we do not believe it proper to simply

                                          9
label a sermon as “ecclesiastical” and bar suit. Rather, we ask whether the suit will

require us to delve into protected matters of church doctrine, policy, and practice. See

Scotts African Union Methodist Protestant Church v. Conference of African Union

First Colored Methodist Protestant Church, 98 F.3d 78, 95 (3d Cir. 1996) (“[T]he

extent to which a court may permissibly inquire into [ecclesiastical] disputes . . . turns

on the specific elements of the inquiry itself and the degree to which it might trench

upon doctrinally sensitive matters, rather than on conclusory labeling of the whole

dispute as either ‘secular’ or ‘ecclesiastical.’”).

      Looking to the specifics of this suit, we are not convinced that the court will

be forced to inquire into doctrinal issues. First, although Hocker’s statements were

part of a sermon, he also repeated the allegations, along with others, on numerous

occasions after the sermon, thus taking the bulk of his comments outside of the

religious practice context. Further, as the district court noted, the sermon statements

themselves were not related to employment or polity issues, but were given as a

personal life example of deception. Second, neither party has pointed to any doctrinal

issues that will be involved. We are not asked to determine whether Ogle’s actions

complied with church law, whether Hocker’s religious condemnation of Ogle

comports with the religious tenants of the COG, or whether Hocker’s statements

supported his doctrinal point. Nor could Hocker’s statements be construed to involve

                                           10
pastor-parishioner discipline, since Ogle did not belong to or attend Hocker’s

Virginia Beach church. See Paul v. Watchtower Bible & Tract Soc. of N.Y., Inc., 819

F.2d 875, 878 (9th Cir. 1987) (refusing to apply doctrine of ecclesiastical abstention

to “shunning” rule challenge because plaintiff did not challenge the rules as contrary

to church law or seek relief for wrongful “shunning,” but instead sought “relief for

the harms suffered as a result of conduct engaged in by the Jehovah’s Witnesses that

is presumably consistent with the governing law of the Church”). Most importantly,

however, Hocker does not claim that defamation is a practice of his church or is

otherwise rooted in religious belief. Were he to do so, our power to adjudicate his

claims would be doubtful. See Sanders, 134 F.3d at 337-38. The only issue is

whether Hocker’s purported factual statements, made both during a sermon and in

multiple other contexts, were falsehoods that harmed Ogle. Thus, despite our

compunction about reviewing statements made by a pastor, some of which were from

the pulpit, we believe that civil court jurisdiction is justified in these limited

circumstances because the disputed issues can be resolved through application of

secular standards without any impingement upon church doctrine or practice.

      B.     State Law Claim - Defamation

      Having determined that the First Amendment’s religion clause does not prevent

adjudication of this case, we turn to Ogle’s claims of defamation and IIED. Relying

                                         11
on the First Amendment’s free speech clause, Hocker contends that summary

judgment was properly granted because (1) his statements were not provably false,

(2) Ogle was required to show actual malice, and (3) Ogle failed to show that

Hocker’s statements were false. We address these contentions in turn.

             1.     Capable of Carrying a Defamatory Meaning

      The Supreme Court has refused to construe the First Amendment to provide an

opinion exception to defamation law, reasoning that sufficient protection already

exists for “statements that cannot ‘reasonably [be] interpreted as stating actual facts’

about an individual.” Jolliff v. N.L.R.B., 513 F.3d 600, 610 (6th Cir. 2008) (citing

Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1

(1990)). Nevertheless, “‘a statement of opinion relating to matters of public concern

which does not contain a provably false factual connotation will receive full

constitutional protection. . . .’” Id. (quoting Milkovich, 497 U.S. at 20). In other

words, statements of pure opinion, hyperbole, or rhetorical exaggeration will receive

First Amendment protection, but statements deemed capable of carrying a defamatory

meaning will not. Id. Whether a statement is capable of carrying a defamatory

meaning is a question for the court. Harris v. Bornhorst, 513 F.3d 503, 522 (6th Cir.

2008) (quoting Falls v. Sporting News Publ’g Co., 834 F.2d 611, 615-16 (6th Cir.

1987)). The court does not decide whether a statement was actually defamatory, but

                                          12
only whether a reasonable fact-finder could interpret it as containing false assertions

of fact. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991).

       While the Supreme Court provided examples of how to determine whether

protected opinion is at issue, it did not set out an explicit test. In Jolliff, we canvassed

the tests and approaches of other circuits and created a framework for ascertaining

whether a defamatory meaning can be gleaned from the allegedly defamatory

statement. Jolliff, 513 F.3d at 610-612. Under this approach, the court parses the

language of the statement under a multi-factor test:

       (1) The common usage or meaning of the allegedly defamatory words
       themselves, whether they are commonly understood to be loose,
       figurative, or hyperbolic words;
       (2) The degree to which the statements are verifiable, whether the
       statement is objectively capable of proof or disproof;
       (3) The immediate context in which the statement occurs; and
       (4) The broader social context into which the statement fits.
Id. at 611-12.

       Applying these factors to the case before us, we conclude that Hocker’s

statements were not protected.5 First, while many of Ogle’s sermon statements were


       5
         Ogle makes two assertions relating to the applicability of Milkovich. First, he claims that
this case involves a private figure and a matter of private concern and that Milkovich does not
apply in such contexts. But see Restatement (Second) of Torts § 566 cmt. c, at 173 (1977)
(“Although it is . . . possible that [the Supreme Court will treat] private communications on
                                                                                       (continued...)

                                                 13
either figurative or hyperbolic (for example, the claim that Ogle was a “false

prophet”), the common meaning of other phrases suggests, as a literal fact, that Ogle

wished to engage in homosexual behavior (for example, “[h]e also wanted me to

become his very good friend. . . .”). See Unelko Corp. v. Rooney, 912 F.2d 1049,

1053-54 (9th Cir. 1990) (finding defamatory factual assessment in a TV segment

otherwise was filled with hyperbole and humor). Second, many of the statements are

verifiable. While that verification may depend on whose story a listener believes,

most of the assertions are tied to underlying factual assertions. For example, a phrase

like “manifested issues of homosexuality,” which cannot easily be reduced to a clear

meaning, nevertheless carries implicit factual assertions (i.e., that Ogle wished to

engage in homosexual behavior).6 Like the allegations of perjury in Milkovich, these

assertions may be disputed, but they are verifiable. See Milkovich, 497 U.S. at 21-22,

110 S. Ct. 2695, 111 L. Ed. 2d 1. Third, the context of the statement cuts both ways.

Hocker’s sermon was intended to excite and outrage his congregation. Thus, some

       5
         (...continued)
private matters . . . differently, the logic of the constitutional principle would appear to apply to
all expressions of [pure] opinion. . . .”). Second, he argues that in the private figure/matter of
private concern context, Michigan law requires the defendant to show that a statement is “not
provably false.” Since we conclude that Milkovich provides no protection (and because neither
party briefed the issue of whether a matter of public concern is at issue), we decline to address
these additional points.
       6
         Some statements, like Hocker’s declaration that Ogle was a “false prophet” cannot be
verified. Nevertheless, the underlying factual assertion that Ogle attempted to engage in
homosexual behavior can be.

                                                  14
of his statements might be considered as rhetorical flourishes. See Jolliff, 513 F.3d

at 613 (distinguishing letter to management from “leaflets, pamphlets, or organizing

slogans meant to excite workers or rally their support . . .”). On the other hand,

Hocker also passed his declarations on to others in a number of conversations, which

suggests he intended his statements to be accepted as literally true. In both contexts,

however, Hocker’s statements invited his audience to believe that Ogle made

homosexual advances. As such, this factor suggests an underlying defamatory

meaning. The fourth factor, the broader social context, mirrors the third factor. The

sermon statements were more likely to be rhetorical and exaggerated, whereas the

one-on-one statements would likely convey the message that Hocker’s version of

events was literally true. See id (distinguishing between private communications,

which are more likely to be taken as literally true, from public communications,

which are more likely to be rhetorical). Weighing these factors together, we find that

a reasonable trier of fact could attribute a defamatory meaning to Hocker’s

statements. Therefore, the district court erred in granting summary judgment based

on Milkovich.

             2.     Actual Malice

      We next turn to Hocker’s alternative argument that Ogle’s claim must fail

because he has failed to demonstrate actual malice. Whether actual malice must be

                                          15
proven, however, turns on whether Ogle is a public or private figure, a classification

that the parties vigorously dispute.7 See Gertz v. Robert Welch, Inc., 418 U.S. 323,

342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).

       Public figures are those who have “assumed roles of especial prominence in the

affairs of society.” Id. at 345. However, “[a]bsent clear evidence of general fame or

notoriety in the community, and pervasive involvement in the affairs of society, an

individual should not be deemed a public personality for all aspects of his life.” Id.

at 352. The evidence relating to whether Ogle is a public figure is sparse, deriving

mainly from Ogle’s own pleading statement that he is an “international evangelist”

who has attained “international fame and reputation throughout the nation, as well as

other countries, with respect to his ministry.” (J.A. 10.) Hocker argues these

statements establish Ogle as a “self-proclaimed public figure,” but this position must

be rejected. Even assuming that proclaiming oneself a public figure were sufficient,

Ogle’s statements admit fame only “with respect to his ministry.” Therefore, he could




       7
         Hocker also claims that various qualified privileges protect his statements. The
privileges he relies on, however, require him to show a duty to disclose and disclosure to proper
parties only. See, e.g., Bufalino v. Maxon Bros., Inc., 368 Mich. 140, 153, 117 N.W.2d 150
(1962) (describing elements of duty privilege as “good faith, an interest to be upheld, a statement
limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to
proper parties only”). Even assuming Hocker’s congregation may have been a proper receiving
party, the record is unclear about whether Hocker also disclosed the information to persons
outside the church. As such, summary judgment would be improper on this ground.

                                                16
not have conceded that he was a public figure for all purposes.8

       Although Ogle has not attained the status of public figure, Hocker contends

that he is at least a limited purpose public figure. Private persons can become public

figures by “‘thrust[ing] themselves to the forefront of particular public controversies

in order to influence the resolution of the issues involved.’” Wolston v. Reader’s

Digest Ass’n., Inc., 443 U.S. 157, 164, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979)

(quoting Gertz, 418 U.S. at 345, 94 S. Ct. 2997, 41 L. Ed. 2d 789). Mere association

or involvement in a controversy is not necessarily enough; instead the court analyzes

the “‘nature and extent of an individual’s participation in the particular controversy

giving rise to the defamation.’” Id. at 167 (quoting Gertz, 418 U.S. at 345, 94 S. Ct.

2997, 41 L. Ed. 2d 789).

       Under these standards, Ogle fails to qualify as a limited-purpose public figure.

Hocker’s allegedly defamatory statements concerned Ogle’s actions in a hotel room

in Belgium. Even if true, these actions plainly did not thrust Ogle to the forefront of

any public controversy. Nor is that conclusion disturbed by the public stir that later

surrounded Hocker’s accusations. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

Therefore, since nothing shows that Ogle thrust himself into the vortex of a public



       8
        Indeed, Ogle can hardly be said to possess pervasive fame when Hocker, himself a
bishop in the COG church, had not heard of him prior to their first meeting.

                                              17
issue, Ogle will be treated as a private figure plaintiff. As such, actual malice need

not be proved, and Hocker’s alternative grounds for affirming the trial court must fail.

             3.     Proof of “Falsity”

      Finally, the parties dispute whether a prima facie case for defamation has been

established. Under Michigan law, a defamation claim requires “(1) a false and

defamatory statement concerning the plaintiff, (2) an unprivileged communication to

a third party, (3) fault amounting at least to negligence on the part of the publisher,

and (4) either actionability of the statement irrespective of special harm (defamation

per se) or the existence of special harm caused by the publication” (defamation per

quod). Mitan v. Campbell, 474 Mich. 21, 24, 706 N.W.2d 420 (2005) (citations

omitted). The parties dispute whether Ogle has shown falsity.

      “Where the alleged defamation concerns both a private figure and a matter of

private concern, the burden of proving that the statement was not false rests with the

defendant. However, where the statements are of public concern, the private-figure

plaintiff bears the burden of proving falsity.” J&J Constr. Co. v. Bricklayers & Allied

Craftsmen, Local 1, 468 Mich. 722, 732 n.11, 664 N.W.2d 728 (2003) (citations

omitted). The district court did not reach this issue. And although both parties note

the importance of the public/private concern, they utterly fail to discuss the issue or

cite any supporting case law. Given this serious failing and the importance of the

                                          18
issue to the case, we remand to the district court to permit it to consider the question

in the first instance. See Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 134

(1st Cir. 1997) (refusing to resolve public concern issues at the appellate level).

      C.     State Law Claim - Intentional Infliction of Emotional Distress
             under Michigan Law

      Finally, we turn to Ogle’s IIED claim. The trial court premised its grant of

summary judgment on this claim solely on the invalidity of Ogle’s defamation claim.

As discussed above, this was erroneous. Thus, to the extent that the trial court

determines that Ogle has set forth a prima facie defamation claim, the IIED claim

should also be reinstated. Hocker, however, argues that even if the defamation action

survives, the IIED claim should still be dismissed because his conduct was not

“extreme and outrageous.” We disagree.

      Although the Michigan Supreme Court has not recognized IIED claims, this

Court has assumed that it will do so. Andrews v. Prudential Sec., Inc., 160 F.3d 304,

309 (6th Cir. 1998). The elements of such a claim consist of “(1) extreme and

outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional

distress.” Id. “The threshold for showing extreme and outrageous conduct is high.”

VanVorous v. Burmeister, 262 Mich. App. 467, 481, 687 N.W.2d 132 (2004).

Liability attaches only where the conduct is “so outrageous in character, and so



                                          19
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Roberts

v. Auto-Owners Ins. Co., 422 Mich. 594, 603, 374 N.W.2d 905 (1985)). “The test is

whether the recitation of the facts to an average member of the community would

arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’”

Graham v. Ford, 237 Mich. App. 670, 674-75, 604 N.W.2d 713 (1999) (quoting

Roberts, 422 Mich. at 603, 374 N.W.2d 905) (internal quotations omitted).

      Construing all inferences in Ogle’s favor, a reasonable jury could potentially

find “extreme and outrageous conduct.” According to Ogle’s version of events,

Hocker deliberately spread false rumors of Ogle’s homosexual inclinations on

multiple occasions to large audiences. A jury could find that this conduct extends

well beyond “mere insults, indignities, threats, annoyances, petty oppressions, [and]

other trivialities.” Linebaugh v. Sheraton Mich. Corp., 198 Mich. App. 335, 342, 497

N.W.2d 585 (1993) (citing Roberts, 422 Mich. at 603, 374 N.W.2d 905). As such,

we cannot say that Ogle’s claim falls short as a matter of law. See id. at 342-43

(circulation of cartoon depicting plaintiff in a sexually compromising position could

be basis for IIED claim).

                               IV. CONCLUSION

      For the reasons stated above, this Court REVERSES the trial court’s grant of

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summary judgment and REMANDS for further proceedings.




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