Donald Abbott v. Crown Motor Company, Inc.

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

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No. 02-3365 Abbott v. Crown Motor Co. 3
1Under Federal Rule of Appellate Procedure 10, we must disregard
parties’ references to evidence that is not in the district court record.
W hile that reco rd includes plaintiff’s deposition, it includes only those
limited portions of Crump’s and Mo rrison’s depositions that are attached
to the summary judgment memoranda.
I. Illegal Retaliation Claims
A. Facts
Defendant Crown, which sells and repairs cars, hired
plaintiff Abbott, a white male, as an automotive technician in
June of 1995.1 In March of 1996, Crown hired Donald
Crump, a black male, as an automotive detailer. Scott
Morrison, the Parts & Services Director, and Jim Purnell, the
work dispatcher, both white males, were Crump’s and
plaintiff’s immediate superiors. On July 8, 1997, Crump filed
a complaint with the Ohio Civil Rights Commission
(OCRC)/Equal Employment Opportunity Commission
(EEOC), alleging that, since June 2, 1997, Purnell and
Morrison had been harassing him and that Purnell had denied
Crump work hours. With respect to the harassment, in
particular, Crump alleged that Purnell used various racial
epithets and that Morrison told a joke that disparaged blacks.
Crump informed plaintiff that Crump had identified plaintiff
to the OCRC/EEOC as a witness to the race discrimination,
and that the OCRC might contact plaintiff. After the OCRC
served Crump’s formal charge upon Crown, Morrison
launched an investigation into Crump’s allegation that Purnell
had racially harassed him. Crump testified that, upon
receiving a copy of Crump’s OCRC/EEOC charge, Morrison
advised Crump that he had better watch his back. Plaintiff
testified that Crump had warned him that Morrison had told
Crump that Morrison would retaliate against anyone who was
trying to disrupt the shop’s operations.
About a week after receiving the charge, Morrison held a
Service Department meeting at which he announced that
allegations of discrimination had been made and asked any
4 Abbott v. Crown Motor Co. No. 02-3365
witnesses to come forward. On September 22, 1997, plaintiff
informed Morrison that he had witnessed Purnell’s use of
racial epithets and that he would testify to it in a court of law
in support of Crump’s race discrimination claim against
Crown. According to plaintiff, while he was discussing his
grievances with Morrison, Morrison was “very attentive, very
abiding,” in “some agreement” with plaintiff, and “pretty well
shocked” about Purnell’s use of racial slurs. Yet, plaintiff
also described Morrison, after he had learned that plaintiff
would testify about the discrimination, as being “amazed,
befuddled, surprised, disbelieving,” gritting his teeth, and
expressing contempt. Morrison told plaintiff that he would
take care of the situation. Morrison fired Purnell the
following day. In March of 1998, approximately eight
months after filing the charge, Crump moved to withdraw his
OCRC/EEOC charge against Crown. According to OCRC’s
letter granting his withdrawal, dated March 12, 1998, Crump
no longer wished to pursue the matter and had stated “that the
racial harassment and derogatory remarks have ceased.”
Sometime in July of 1998, approximately eleven months after
Morrison fired Purnell, Crump tendered his resignation to
Crown, subject to two weeks’ notice, and took a job with
Coca Cola at a higher rate of pay. The parties dispute
whether Crown’s alleged retaliation against Crump was a
factor in his resignation.
On August 28, 1998, defendant discharged plaintiff.
Plaintiff asserts that his discharge was in retaliation for his
having come forward to support Crump’s discrimination
claim. In support of that theory, he points to various
statements made to Crump indicating Crown’s continued
displeasure with Crump’s having filed the OCRC/EEOC
charge as well as Morrison’s continued discriminatory
treatment of Crump. Plaintiff testified that, approximately
one month before his termination, Millard Ripley, Crown’s
Managing Partner, held “a shop meeting at which he
threatened that it was inappropriate for employees to take
complaints outside of Crown Motors.” Crump also testified
that Ripley had stated that “all complaints regarding

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No. 02-3365 Abbott v. Crown Motor Co. 5
employment should be made internally.” According to
Crump, after that meeting, which occurred on the day that
Crump tendered his resignation, Ripley told Crump that he
should not have gone behind Crown’s back to file the OCRC
charge and that Crump should have taken his complaint
directly to Morrison instead. In an affidavit filed before
Crump’s deposition, Crump stated that, around his last day of
employment, Morrison reminded Crump that he had told
Crump that he would “get back at those who had supported
the charge of discrimination against he and Crown.”
The parties dispute many of the events preceding the date
of plaintiff’s termination. For approximately four weeks
before plaintiff was fired, the lift in plaintiff’s bay was out of
commission. Many of plaintiff’s assigned jobs required the
use of a lift. Morrison told plaintiff that he should wheel his
tool box to a substitute lift across the garage, and that his lift
would be repaired. Morrison testified that plaintiff
complained to him every day about the lift, and was carting
his tool box back and forth and “throwing his tools around.”
Plaintiff testified that he complained only about once a week,
and that he never threw his tools. Morrison testified that
plaintiff had engaged in other disruptive conduct, which
plaintiff denies. The parties also dispute what occurred on the
date that plaintiff was fired. Morrison testified that plaintiff
demanded that he be sent home with pay until the lift was
repaired. Crown later informed the Bureau of Worker’s
Compensation that it had discharged plaintiff for
insubordination. Plaintiff testified that, at the end of the
fourth week, Morrison had promised that the lift would be
repaired over the weekend. On Monday when it was still
broken, plaintiff went to Morrison’s office to find out when
the lift would be repaired. Plaintiff testified that Morrison
immediately became angry and asked whether plaintiff
wanted Morrison to fix the lift. Plaintiff answered that he did
not expect Morrison to fix it, but that he had to come to
Morrison about it. Morrison then replied that they did not
want plaintiff to work there any more, stating that he had
already spoken with Ripley and received his permission to
6 Abbott v. Crown Motor Co. No. 02-3365
2Crown’s employee handboo k pro vides that the employee “must
consent in writing to authorize [Crown’s] responses” to inquiries from
prospective employers, and that, absent such consent, Crown’s policy is
“simply to confirm the term of emplo yment and jo b title.”
discharge plaintiff. Morrison told plaintiff that he was firing
him for bringing “the morale of the shop down.” Plaintiff
denies ever raising his voice to Morrison; threatening
Morrison; expressing “rage or any other emotions that could
be considered confrontational”; storming into Morrison’s
office; slamming the door; or giving Morrison an ultimatum
to get the lift “fixed or else.” On the day after Morrison fired
plaintiff, Greg Wade, whom Morrison had hired earlier in
June of 1998, had started work in the service bay made
available only by plaintiff’s termination. According to
plaintiff, a few days after his termination, Ripley informed
plaintiff that Morrison had fired him because plaintiff had put
his nose in other people’s business. Plaintiff testified that he
understood this to mean that Morrison fired him for his
involvement in Crump’s discrimination complaint because
“[t]hat was the only thing that . . . [plaintiff] had his nose in.”
Plaintiff also contends that, after his unlawful termination,
Morrison further retaliated against plaintiff for his
involvement in Crump’s OCRC/EEOC charge by giving a
negative recommendation of him to a potential employer.
Crown conceded that Morrison had informed a potential
employer that he had terminated plaintiff “during the busy
season” and that plaintiff “was not eligible for rehire.” As
Morrison admitted, it violated company policy to provide
such a reference.2
B. Analysis
“Summary judgment is proper where the plaintiff fails to
present evidence sufficient to create a dispute of material fact
with respect to an element of his retaliation claim.” Mullhall
v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002). Because the
Ohio Supreme Court has held that an action under Ohio

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

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

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No. 02-3365 Abbott v. Crown Motor Co. 11
in other people’s business. As plaintiff testified, he
understood this to mean that Morrison fired him for his
involvement in Crump’s discrimination suit as “[t]hat was the
only thing that . . . [he] had his nose in.” These two pieces of
evidence, construed in the light most favorable to plaintiff,
create a genuine issue of material fact as to whether Crown
would have terminated plaintiff had plaintiff not participated
in Crump’s EEOC charge. Furthermore, Morrison gave
plaintiff what a reasonable juror could construe as a negative
job reference in violation of company policy. This creates a
genuine issue of material fact as to whether Crown would
have given plaintiff such an unfavorable job recommendation
had plaintiff not engaged in protected activity. In sum, we
find that plaintiff has offered evidence to establish a prima
facie case of unlawful retaliation.
Although defendant has articulated a legitimate, non-
discriminatory reason for terminating plaintiff–plaintiff’s
alleged insubordination and threatening behavior regarding
his broken lift–, both plaintiff’s testimony and that of another
witness dispute this proffered reason. Thus, summary
judgment for defendant on plaintiff’s retaliatory discharge
claim was improper. See Manzer, 29 F.3d at 1078 (holding
that plaintiff need not introduce evidence in addition to his
prima facie case to demonstrate pretext and to create a
permissible inference of illegal discrimination where he
demonstrates that: 1) the proffered reason has no basis in
fact–i.e. it never actually happened; or 2) the reason was
insufficient to motivate the termination–i.e. the employer did
not terminate another employee engaging in conduct similar
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
reason is a pretext, then the fact finder may infer unlawful
retaliation). Regarding plaintiff’s claim of unlawful
retaliation based upon a negative employment reference,
defendant did not proffer a legitimate, non-discriminatory
reason for this adverse employment action so as to meet its
12 Abbott v. Crown Motor Co. No. 02-3365
3W e note that it is unclear whether defend ant sought summary
judgment on plaintiff’s claim of unlawful retaliation based on a negative
job reference as its memorandum in suppo rt of summary judgment
discusses only plaintiff’s retaliatory discharge claim. Although the
district court granted defendant summary judgment on all of plaintiff’s
claims, presumably including plaintiff’s claim o f unlawful retaliation via
a negative job reference, the d istrict court analyzed only plaintiff’s
retaliatory discharge claim.
burden of production.3 Consequently, having no duty to
show pretext at this point, plaintiff has not failed to create a
genuine issue of material fact “with respect to an element of
his retaliation claim” so as to render summary judgment for
defendant proper. Mullhall, 287 F.3d at 551. In sum, we
REVERSE the district court’s award of summary judgment to
defendant on plaintiff’s state and federal claims of unlawful
retaliation.
II. Intentional Infliction of Emotional Distress Claim
Plaintiff claims that defendant intentionally inflicted severe
emotional distress upon plaintiff when defendant, knowing of
plaintiff’s poor heart condition, terminated him and then gave
him a negative job reference in retaliation for plaintiff’s
involvement in Crump’s discrimination charge. Under Ohio
law, a cause of action for intentional infliction of emotional
distress may lie only where defendant’s conduct is “extreme
and outrageous” in that it goes “beyond all possible bounds of
decency,” is “atrocious,” and is “utterly intolerable in a
civilized community”; conduct that is merely malicious,
aggravated, or intentional or that entails an intent that is
tortious or criminal is insufficient to render it actionable.
Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983).
Even assuming the truth of plaintiff’s allegations, no rational
juror could find that this alleged conduct rises to the level of
“extreme and outrageous” under Ohio case law. See McNeil
v. Case Western Reserve Univ., 664 N.E.2d 973, 977 (Ohio
Ct. App. 1995) (finding insufficiently outrageous as a matter
of law defendant’s alleged conduct of harassing plaintiff to

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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.

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