Sixth Circuit Affirms Employer's Summary Judgment When Plaintiff's Behavior Justified Request for Fitness for Duty Exam and Refusal Was Not Protected Conduct

Last week, the Sixth Circuit affirmed an employer’s summary judgment dismissing claims of retaliation and violations of the ADA when the hospital employer required a physician to submit to a forensic psychiatric exam and drug test as a condition of reinstatement from a suspension.   Robitaille v. Trinity Health Grand Rapids,  No. 25-2154 (6^th Cir. July 20, 2026).  The Court agreed that the numerous reports of the physician’s unprofessional, erratic and paranoid behavior and his safety-sensitive job duties justified the suspension and fitness-for-duty request and the subsequent refusal to renew his employment agreement when he refused to submit to the exam.  It also rejected his argument that his previously stated objections to the employer’s data safety protocols actually motivated the request and non-renewal of this agreement and that his refusal to submit was protected conduct.

According to the Court’s opinion, the plaintiff anesthesiologist was hired in 2022 on a three-year contract.  In December 2023, the computer system experienced an outage and he expressed concerns and agitation about the need for additional safety protocols.    Thus began repeated concerns being expressed to the chain of command about his unprofessional and erratic behavior.  The Practitioners Committee eventual sent him “letters requesting explanations for certain patient-care choices, including multiple instances in which he refused to provide care.”  He summarily referred to patient files after the first few inquiries, but then stopped responding.  “Based on this pattern of conduct, and after an unsuccessful meeting with [him], [the Department Chair] summarily suspended [his] clinical privileges in February 2024.”  The following month, the Executive Committee reviewed the suspension and the Chair’s report, “based on his “disruptive behavior adversely affecting the effective operation of the Hospital.”  . . .  The Executive Committee conditioned any reconsideration of the suspension on [the plaintiff] completing a fitness-for-duty examination that included both drug testing and a forensic psychiatric evaluation.”  The plaintiff submitted to and passed the drug test, but refused to submit to the psychiatric examination.   When his contract expired, the employer decided to not renew it.  Litigation ensued.

Under the ADA, a covered employer may not “require a medical examination” of an employee unless it is both “job-related and consistent with business necessity.” . . .

The statutory standard authorizing medical examinations can be met by performance- or safety-based issues. On the performance side, an examination is proper if an employer has “a reasonable basis” to believe that the employee is “unable to perform the essential functions of [his] job . . . . Thus, when an employee’s “aberrant behavior” affects his “job performance,” an employer may be justified in “ordering a mental examination.”  . . . . On the safety side, requests are proper if the employer has a “reasonable basis” to believe that the employee “pose[s] a direct threat to [his] own safety or the safety of others.”  . . . . Safety-based concerns carry particular weight in high-stress environments—like hospitals—where “employees are in positions where they can do tremendous harm if they act irrationally.”  . . .  In such settings, employers “may be justified in requesting a psychological exam on slighter evidence than in other types of workplaces.”

 . . .

The clinical shortcomings [the Department Chair] presented—[the plaintiff’s] hesitation to perform routine tasks, avoidance of higher-risk patients, and inability to handle the standard caseload—could all cause a reasonable person to question whether [he] was “still capable of performing his job.”  . . .  Likewise, [his] reported “aberrant behavior”—including paranoid ideation and excessive risk-aversion—noticeably impaired his job performance by causing inefficiencies and delays.  . . . . Because [he] practiced anesthesiology, these performance concerns were inextricably linked with patient safety. Administering life-threatening anesthetic agents is inherently high-stakes work where a single careless or “irrational[]” decision by [him] could “do tremendous harm” to patients in his care. . . .

The combination of documented performance shortfalls and behavioral red flags thus gave the Executive Committee reasonable grounds to question both whether [the plaintiff] was “still capable of performing his job,”  . . . , and whether he “posed a direct threat” to patient safety,  . . . . Given the nature of these concerns, the Executive Committee reasonably sought to rule out underlying impairments related to substance abuse or mental health that could be hindering [his] fitness to practice. The decision to require the medical examination was therefore both “job-related and consistent with business necessity.” . . .

The Court rejected the plaintiff’s argument that the district court had inappropriately believed the truth of the allegations against him.” Rather, it correctly identified that “the relevant question is whether the [Executive Committee] had a ‘reasonable belief’ that a medical exam was warranted.”  . . .  And it explained that “the underlying truth of [the Chair’s] claim does not impact whether the [Executive Committee] was reasonable in relying on it.””

The Court also rejected the plaintiff’s argument that the report and examination request was pretext for discrimination or retaliation.  “For starters, our decision in Sullivan adopted the objective-evidence standard for ADA medical-examination claims and held that “there is no need to assess an employer’s intent in ordering a fitness-for-duty examination.””

The Court also rejected the plaintiff’s argument that all of this was pretext as retaliation for his concerns with the computer safety protocols because he failed to address the subsequent months of multiple reports about his behavior and performance issues and his refusal to respond to them or to cooperate with the investigation by the Practitioners Committee. “Those issues, as mentioned, provided an intervening, non-retaliatory basis for the Executive Committee to order the medical examination.”

The plaintiff also argued that his refusal to submit to the fitness-for-duty examination was protected conduct under the ADA.  The Court rejected that argument as well.  The employer’s “request did not violate the ADA, and [he] offers no other arguments that his opposition was reasonable and grounded in good faith.  . . .  [His] argument that he engaged in protected activity therefore fails.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Addresses Compensable Travel/Commuting Time and Continuous Workday Doctrine in Two Opinion Letters

Last week, the federal Department of Labor Wage and Hour Administrator issued two opinion letters concerning the compensability of time spent travelling from home to work or one’s first client assignment.  Ohio law generally follows the FLSA and employers can rely on opinion letters for a good faith defense, although these letters are not binding on courts.   The DOL explains that time spent commuting from home to work generally benefits the employee more than the employer (because the employee chose where to live) and is generally not compensable because, unless the employee is performing work during the commute, the time is spent mostly for the benefit of the employee (like lunch breaks).  “[A]s a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday.”   Thus, employers who permit employees to work remotely from home need not compensate employees who (i) only work, or start working, from home in the morning before then commuting to the office or (ii) perform some work from home after travelling home in the evening as a convenience.  However,  in the next letter, the DOL found that an employee who did not have a regular work office and always commuted to directly to his first client assignment and was required to spend almost an hour before leaving each day scheduling client appointments (sometimes while driving), then the drive time and scheduling time was compensable, but not the time spent receiving pages with such assignments. 

In the first letter, FLSA2026-9,  the Administrator addressed an employer which generally required employees to spend the entire day working from home or working in the office to avoid having to pay for mid-day commuting time even though (i) some employees preferred to work from home during rush hour in order to reduce their commuting time, (ii) some employees needed to leave early because of bus schedules, but were otherwise willing to work more hours and overtime and (iii) some employees wanted to work half days from home and half days in the office.   In none of these scenarios were the employees performing any work during their travel to or from the office (which would, of course, be compensable).  Because scheduling the commute was for the convenience of the employee and benefitted the employee (who chose where to live) more than the employer, the DOL explained that the time was no more compensable than a lunch or other rest break. 

Under the Portal Act, “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform” are not compensable activities. 29 U.S.C. § 254(a)(1). However, both before and after the Portal Act, WHD and courts have long confirmed that “[n]ormal travel from home to work is not worktime.” 29 C.F.R. § 785.35;  . . .  even in its pre-Portal Act decisions, the Court never held that time an employee spent traveling from his or her home to an employer’s worksite was generally compensable. This is because normal commuting travel between home and work is a “normal incident of employment” that may take more or less time depending on where an employee lives—i.e., it predominantly benefits employees by allowing them to live where they choose.  . . . Ordinary commuter travel is excludable whether an employee “works at a fixed location or at different job sites.” 29 C.F.R. § 785.35.

 . . .

 . . . though ordinary commuting is not compensable work—as explained above— travel from home to work can constitute work in some instances, such as “if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers.” 29 C.F.R. § 785.36; see also id. § 790.7(c). Similarly, “home to work [travel] on [a] special one-day assignment in another city” is compensable worktime, though an employer may deduct the time that an employee would have otherwise spent commuting to his or her “regular work site.” Id. § 785.37;  . . .  Finally, if an employee performs any work during home-to-work travel, it would “of course be counted as hours worked.” 29 C.F.R. § 785.41; see also id. § 790.7(d). These types of travel are not considered “ordinary” commuting because they are not normal incidents of employment and primarily benefit the employer as opposed to the employee.

The Continuous Workday Doctrine.  The “continuous workday” doctrine or rule establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . . For example, “a messenger who works a crossword puzzle while awaiting assignments” or “a factory worker who talks to his fellow employees while waiting for machinery to be repaired” is considered to be working, even if the employee is “allowed to leave the premises or the job site during such periods of inactivity.” 29 C.F.R. § 785.15. Similarly, a waiter who must wait during his shift for customers to come in is working. . . .

The continuous workday doctrine reflects a general presumption that an employee’s time within the workday predominantly benefits the employer—and that time outside the workday mainly benefits the employee. It thus historically benefits both employers and employees. Generally, an employee’s time during the workday is compensable, even though it may provide employees with some benefits, whereas outside the continuous workday time is generally not compensable even though it may provide employers with some benefits. . . .

Like many general principles, there are recognized exceptions to the continuous workday doctrine—both for time spent at an employer’s worksite that clearly benefits the employee more than the employer and, concomitantly, time spent away from an employer’s worksite (e.g., at a worker’s home) that benefits the employer more than the employee. The former is, therefore, excludable from compensable worktime and the latter properly counted as hours worked. Specifically, the Department has recognized off-duty time, defined as “periods during which an employee is completely relieved from duty and which are long enough to enable [an employee] to use the time effectively for his own purposes,” and bona fide meal periods as time during the workday that is nonetheless not worktime and thus need not be compensated. 29 C.F.R. §§ 785.16, 785.19. And, of course, any hours worked before or after an employee’s regular working hours constitute worktime, even if the work is performed away from the worksite, including at home. 29 C.F.R. § 785.12.

 . . . , as a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday. . . .

 .. .

 . . . ,” otherwise-ordinary travel between home and work does not become worktime simply because it occurs during the workday—that is, at some point in between an employee’s first and last “principal activities.”  . . .

Rather, when an employee engages in an “ordinary” commute, the commute is simply a “normal incident of employment,” and thus is not “work.” 29 C.F.R. § 785.35.22.   We therefore confirm here that if home-to-work travel is “ordinary,” it need not be paid or recorded as worktime, and we clarify that ordinary home-to-work travel that occurs during the workday constitutes a third category of time during the workday, in addition to bona fide meal breaks and off-duty time, that is not considered “hours worked” under the FLSA.

 . . . .

 . . .  the timing of such commuter travel is genuinely voluntary, as employees might have any number of reasons to adjust the timing of their daily commutes. For example, an employee might need to remain at home for part of his or her workday due to a sick child or a visit from a maintenance worker during a scheduled appointment window. Because optional mid-day commuter travel allows employees to accommodate such personal needs, it can benefit employees as much or more than commuter travel which occurs at the beginning or end of the workday. Accordingly, voluntary commuter travel which occurs in the middle of the workday remains an ordinary commute and does not qualify as work.

In the second letter, FLSA2026-10, the employee did not have a regular office, but rather, performed maintenance and repair work on hospital MRI machines throughout the region where he lived.  He would receive pages each morning with an assignment and then would spend roughly 45 minutes before his paid shift began at 8 am calling those hospitals and scheduling appointments.  Sometimes, he would have to leave well before his 8 a.m. shift and schedule appointments on the way.  Thus, he had no “normal” commute because each day he was sent to a different location. 

The DOL found that the pages (which took approximately 15 seconds each to receive) did not constitute work time.  It also did not matter that his employer provided him with a vehicle in which to travel.   However, the time he spent scheduling appointments, consulting with engineers, and driving to appointments did constitute compensable work time.  “The “continuous workday” doctrine establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . .

Compensable Travel Time. Unlike ordinary commuting time or travel time excepted by the Portal Act or ECFA, any travel that is part of an employee’s principal activity, such as travel between different worksites during the workday, is considered part of the day’s work and therefore compensable hours worked.  . . .  Additionally, because an employee must be paid for all hours worked, courts and the Division have long recognized that time spent during an otherwise non-compensable ordinary home-to-work or work-to-home commute becomes compensable hours worked when the employee is working during the commute time.  . . .  Thus, if, during a commute, an employee performs activities that are integral and indispensable to the principal activities he or she is employed to perform, or said principal activities themselves, and not incidental to the use of an employer-provided vehicle for commuting, then the time spent on those activities constitutes compensable hours worked even though the activities occur during an otherwise non-compensable commute.

 . . . .

Receiving assignments remotely is a minor consequence of driving an employer-provided vehicle to and from home. Otherwise, an employee would have to report to a central work location to receive assignments, which would frustrate the convenience of a program allowing employees who work at multiple job sites per day to drive an employer-provided vehicle directly to and from home. . . . .

On the other hand, time spent calling clients to schedule and arrange the details of appointments, including scheduling other field service engineers, constitutes compensable hours worked. These activities are required by, and primarily benefit, your employer; therefore, they constitute work. Furthermore, they are a critical element of your primary responsibilities, and consequently are not incidental to your commute or otherwise preliminary but rather integral and indispensable to your principal activity of installing and servicing medical equipment at your employer’s clients’ locations. Unlike simply receiving pages, communicating with clients to schedule appointments is a necessary step to performing the services requested by them.  . . .  The same is true of calling other field service engineers to ensure that clients’ service requests are fulfilled. Similarly, unlike receiving pages, which is specifically necessary for you to receive assignments from home, one must call clients to schedule appointments in any event if clients’ requests are to be fulfilled. This activity is thus intrinsic to the services you perform for clients, and you cannot dispense with such work.  . . . .

 . . . .

Under the facts described above, we conclude that this travel is not an ordinary commute, but rather compensable travel. We reach this conclusion based on the application of longstanding FLSA principles to the totality of the circumstances. Here, not only are both the time and manner of the travel based primarily on the employer’s needs rather than the employee’s choice, but your employer is also requiring you to engage in substantial work both immediately before the travel, when you spend most of an hour engaged in phone calls, and immediately after your travel, when you work at your first worksite of the day. This bears few, if any, of the hallmarks of an ordinary commute between an employee’s home and worksite. Indeed, under the circumstances described, you lack virtually any of the types of freedom and flexibility that typically accompany an ordinary home-to-work commute time, such as the choice of the mode of transportation, the choice of departure time, and the ability to spend time on personal tasks before or during breaks in the travel. For these reasons, we conclude that your travel is not, in fact, an “ordinary” commute that is non compensable regardless of when it occurs. To be clear, the Division would consider this sort of travel to work to be explicitly excluded from compensability under the Portal Act if it were to occur before or after the workday. . . .

 . . .

 . . . . you are sometimes required (and accordingly must regularly plan) to spend the substantial majority of the hour before your travel making calls to clients, and to other engineers as necessary, to fulfill clients’ service requests, with any personal activities you undertake limited to those you can perform simultaneously with (or in very short breaks between) your work duties, before you immediately travel to your first worksite at the time and in the manner directed by your employer. . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Proposes Regulation to Rescind Employer Demographic Recordkeeping Requirements for EEO-1

 Yesterday, the EEOC announced that it was proposing to rescind the regulations which require many employers (with over 100 employees or with a certain federal contract, etc. ) to maintain and file demographic information on an annual basis.  In short, the EEOC proposes to abolish the EEO-1 and EEO-2, etc. requirements because they are burdensome to employers and the government and are contrary to goal of a color-blind society when most employers are not accused of unlawful discrimination.   It also contended that it encouraged stereotyping and impermissible preferences.   This action would remove the requirement to request such information from newly hired employees, etc. "Because the Commission is proposing to rescind the EEO reporting requirements, it is also proposing to rescind the recordkeeping and record preservation requirements associated with the EEO Reports." The proposal has not yet been published in the Federal Register, but once it is, the EEOC will accept comments on its proposal for 30 days under the Administrative Procedures Act. 

As stated in the proposed Notice:

    Removal of EEO-1 Reporting Requirements and Conforming Amendments.   The proposed rule would remove current § 1602.7, which contains the EEO-1 reporting requirement. The proposed rule also removes § 1602.8, which contains a penalty for making false statements on the EEO-1 report; § 1602.9, which contains the Commission’s remedy for a regulated entity’s failure to file an EEO-1 report; and § 1602.10, which is currently reserved and therefore unnecessary. It also removes §§ 1602.11 and 1602.12, which reserve to the Commission the right to impose additional reporting or recordkeeping requirements; these sections are unnecessary to retain because section 709(c) of Title VII authorizes the Commission to establish such requirements in the future. The proposed rule removes § 1602.13 because it contains requirements related to the EEO-1 report that are not necessary in the absence of the reporting requirement. The Commission restates its proposal to amend § 1602.14 to add a reference to the PWFA, as first proposed in the Commission’s November 21, 2024 NPRM.

 . . . . 

Amendment and Removal of Sections Pertaining to Investigations The Commission proposes to amend § 1602.56 to remove a reference to the EEO reporting requirements and to clarify that the section applies to record preservation in addition to recordkeeping. The Commission further proposes to remove §§ 1602.57 and 1602.58 because they concern requests for exemption from reporting and would be unnecessary in the absence of the reporting requirements.  

 . . . . 

    EEO-1 annual reporting requirements apply to private employers with 100 or more employees and to federal contractors that have 50 or more employees and meet certain criteria. 

 . . . 

§ 1602.14 Preservation of records made or kept. Any personnel or employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records 54 of the individual terminated shall be kept for a period of one year from the date of termination. Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, GINA, or the PWFA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term “personnel records relevant to the charge,” for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of “final disposition of the charge or the action” means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation is terminated. (Approved by the Office of Management and Budget under control number 3046-0040)  

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Dismissal of Retaliation Claim because Employee's Protected Conduct is Not Outweighed by Unprotected Misconduct.

 On Friday, the Sixth Circuit affirmed an employer’s summary judgment on a retaliation claim.  Crisp v. Scioto Ambulance District, No. 25-3885 (6^th Cir. 2026).  The plaintiff had reported to a supervisor an incident of sexual harassment several years earlier, but never filed a Charge or lawsuit even though the alleged harasser suffered no disciplinary action after being scheduled on separate shifts.  More recently, she showed at work pornographic pictures of the alleged harasser and his wife to new female co-workers which were online and was promptly fired for creating a hostile work environment.  “If [she] had a legal claim based on [his] alleged misconduct, she should have pursued it. [His] alleged wrongs at work did not give [her] the right to show alleged pornography while on the job.”  In other words, “ [w]hen an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.”

According to the Court’s opinion, the plaintiff and alleged harasser worked together as EMTs for the City ambulance department and he frequently sexually harassed her with lewd comments.  She learned that he had posted pornographic images of himself on a public website profile seeking partners outside of marriage.  They later come to work together again at the County ambulance district.  Again, he engaged in horseplay and once groped her.   After she reported it to a supervisor, he suffered no disciplinary action, but was scheduled on different shifts from her thereafter.   She let anyone who would listen know that she found him to be a pervert, etc., but pursued no legal or administrative action.  Several years later, after some new female EMTs were hired (including his wife), she felt compelled to warn them about him by showing them the pornographic images he had posted (and possibly some that included his wife).  The employees complained and, following an investigation, the plaintiff was fired for creating a hostile work environment for showing pornographic images in the workplace when simply providing a verbal warning would have been sufficient.   She filed suit for retaliation. 

Federal and state law ban retaliation against an employee for opposing an employer’s discriminatory practices.  . . .  So an employer cannot fire an employee for simply telling her co-workers that she is being sexually harassed at work. . . .

 . . . .

Displaying the [his] alleged Fetlife profiles to other co-workers while at work was not protected activity. True, [the plaintiff] complained that [he] had made inappropriate comments and had touched her inappropriately while on their shift. If that happened, [his] conduct was deplorable and sanctionable. See, e.g., Ohio Rev. Code § 2907.06(A) (sexual imposition); Ohio Admin. Code § 4765-9-01(B) (EMTs must “exhibit respect for the medical needs and personal values of . . . other EMS and healthcare practitioners”). But that would not excuse how [she] responded.  

Instead of seeking redress in a lawful way, [the plaintiff] took matters two steps further by showing nude and perhaps also sexually explicit images of both [the alleged harasser] and his wife (who had nothing to do with [his] alleged workplace misconduct) to other co-workers while at work. [She] did not need to share those images to make her point, nor can she justify showing the images of [his] wife, given that [the plaintiff’s] complaints of workplace harassment pertained only to [him] himself. Even if the[y] posted these images online and publicly shared some of this information, that does not mean that their co-workers had to be subjected to seeing or hearing about it while on the job. In the workplace, the law requires that some things be left unseen. The[ir] alleged Fetlife profiles are two of them.

[Plaintiff] argues that Title VII protects at least some of what she said and did at the meeting  . . . . We agree, see,  . . . . but that is not enough for her claim to survive. When an employee engages in both protected and unprotected conduct under Title VII, she cannot use the protected conduct to seek shelter from a firing that is based on her unprotected conduct.  . . . .  Put more concretely, the mere fact that [she] was complaining about [his] behavior did not give her the right to also show the nude and possibly sexually explicit pictures of him and his wife. For good reason, [she] does not argue that displaying these images while at work is protected activity. So the fact that she may have been allowed to tell her co-workers about [his] alleged workplace misconduct does not excuse her own misconduct.

 . . . First, to the extent that Title VII provides a remedy for employees in a sexually charged workplace, that remedy lies in a hostile-work-environment claim,  . . .  and [she] dropped that claim in her summary judgment papers. Second, [she] does not bring a disparate-treatment claim, nor does she argue that similarly situated EMTs at Scioto shared nude or sexually explicit images without being fired . . .  Thus, to win relief from our court, Crisp is essentially left to persuade us that a jury could find her employer violated Title VII when it fired her for sharing nude images of a co-worker while on the clock. That she has not done.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous Sixth Circuit Rejects Retaliation Claims That Lacked Protected Activity When Plaintiff Never Retained Law Firm or Joined Lawsuit

Yesterday, a unanimous Sixth Circuit Court of  Appeals affirmed a healthcare employer’s summary judgment on retaliation claims brought by a terminated physician who opposed the employer’s COVID vaccination policy and shared internal communications about the policy with a class action law firm without retaining the law firm, joining the class action or even filing an EEOC Charge.  DiChiara v. Summitt Medical Group, Inc, No. 25-5396 (6^th Cir. 2026).   The Court found that the conduct which caused her termination was not protected participation because she never joined or commenced an official proceeding before her termination or misconduct.  Her misconduct could have been protected opposition except that she did not have an objectively reasonable belief at the time of her misconduct that the employer was violating the law since its policy was facially valid and she was unaware of how it had been addressing requests for religious and medical exemptions. 

According to the Court’s opinion, on August 1, the employer adopted a COVID vaccination policy which provided that all employees must be vaccinated by October 1 or seek a medical or religious exemption by September 15.  The plaintiff physician opposed the employer’s COVID vaccination policy on scientific, medical and religious grounds.  However, she initially only publicly opposed it on scientific grounds.   

After seeing a Facebook post from a disbarred attorney who was working to fight similar vaccination policies at various regional hospitals, she contacted him for advice about contesting the policy on medical, scientific and religious grounds, although she did not intend to assert religious grounds until seeking her own exemption.  However, she declined to sign a letter of representation or to join a class action lawsuit that was then filed against her employer.  Instead, she met with her employer and presented her scientific and medical concerns.  

When her employer did not rescind its policy after her meeting, she arranged for a petition by similarly minded co-workers and shared information about the petition and other internal emails with the law firm, asking that it not be made public and that she assumed that her religious exemption would be granted when she sought it.  The petition was submitted to her employer with 47 signatures on August 31.  The law firm then included the information about her emails and the petition in its lawsuit, which embarrassed her, and caused her to demand that the information be removed and to apologize to her employer and colleagues because she never intended to seek litigation, had never retained the Deters law firm and never signed an affidavit.

She formally sought her religious exemption on September 13 and it was granted on September 17.   By October 1, all employees had been vaccinated or received an exemption.  The plaintiff was fired on October 4 for, among other things, misappropriation of company property, disloyalty, unprofessional behavior, etc.  and subjected to a non-compete clause.   She then filed an EEOC Charge and initiated litigation. 

The Court affirmed dismissal of the lawsuit.  Of interest, was its clear bright-line guidance concerning her federal retaliation claims.

To establish a prima facie case of retaliation, [the plaintiff] must show that she (1) “engaged in protected activity,” (2) her “employer knew of the exercise of the protected right,” (3) her employer took an “adverse employment action” against her, and (4) “there was a causal connection between protected activity and the adverse employment action.” . . .

We start and end by analyzing protected activity. Title VII and the ADA provide two distinct ways that an employee can engage in protected activity. First, an employee could “participate[] in any manner” in a Title VII or ADA investigation, proceeding, or hearing. 42 U.S.C. § 2000e-3(a); id. § 12203(a). Second, an employee could “oppose[]” unlawful discrimination. Id. The distinction between the opposition clause and the participation clause “is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.”  . . . .. But neither clause covers [her] conduct in this case.

Participation. [She] argues that she participated in a Title VII proceeding because she “confidentially gave employer documents to a law firm . . . to help build Title VII and ADA claims.”  . . .  This sort of indirect assistance does not qualify as protected conduct under the participation clause on the facts of this case. The participation clause “protect[s] the employee who utilizes the tools provided by Congress to protect his rights.”  . . .  “[O]nce activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.” . . . The protection persists even if “[an] employee is wrong on the merits of the charge” or “the contents of the charge are malicious or defamatory as well as wrong.”

Such broad protection necessitates a clear starting point. We have previously held that participation must be “direct”—it covers activities like being a party to a lawsuit, providing deposition testimony, or responding to a subpoena.  . . .  By contrast, we have held that “any activity by the employee prior to the instigation of statutory proceedings is to be considered pursuant to the opposition clause” rather than the participation clause.  . . .  To hold otherwise, we explained, “would blur the distinction between opposition to unlawful practices and participation in proceedings.”

[The plaintiff] was not a party to any lawsuit and her own statements show that she never intended to “seek litigation,” that she “never asked Deters Law to represent [her],” and that she never “sign[ed] any affidavits for Deters Law.”  . . .   . . .  Instead, she argues that her emails to Eric Deters were protected activity because she sent them as “ammunition” to help build Deters’s case.  . . .  But [her] pre-lawsuit emails constitute indirect assistance at best. That’s not enough.

 . . .

We ask simply whether an employee was directly involved in an ongoing proceeding.  . . . And here, the answer is no.   [The plaintiff] has presented no evidence of direct participation in a Title VII or ADA proceeding. No lawsuit was ongoing at the time she forwarded the emails. And, even with respect to the later-filed lawsuit, she was never a party. Nor did she participate in a deposition or subpoena. Indeed, she affirmatively renounced any involvement in the relevant lawsuit as a party or witness. So her conduct doesn’t qualify.

Opposition. [The plaintiff] also argues that her forwarding of confidential internal emails to Deters constituted protected opposition. For the opposition clause to apply, an employee must “challenge[] an employment practice that [s]he reasonably believe[s] was unlawful.”  . . .  That requires the plaintiff to make two showings: (1) that she actually, subjectively believed that her employer was engaging in discriminatory activity and (2) that such a belief was objectively reasonable in light of the facts.

The Court accepted that she may have subjectively believed at the time of her misconduct that the policy was unlawful and was concerned that it would ultimately deny her religious exemption request.  However, there was no evidence that this belief was objectively reasonable based on the facts that she knew at the time or as they eventually developed.

 . . .  Objective reasonableness requires a finding that “a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee would believe that the conduct complained of was unlawful.”  . . .  This inquiry is a matter of law “when no reasonable person could have believed that the facts known to the employee amounted to a violation or otherwise justified the employee’s belief that illegal conduct was occurring.”  . . .  

That’s the case here. No reasonable person could have believed that the facts known to [the plaintiff] amounted to a violation of Title VII or the ADA. [She] offers no evidence known to her at the time that would support a reasonable belief that [her employer] engaged in “any practice made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). [Its] vaccine policy, which promised religious and medical accommodation, was facially legal. And [she] does not claim that she thought otherwise. So [she] needed some additional basis to think that [it] would act unlawfully.

[She] fails to provide that crucial evidence. [She] had not yet applied for a religious exemption and didn’t have any information about how [her employer] would process her request—especially because she intentionally avoided discussing her religious objections with [its] leadership. In fact, when [she] told Deters that she planned to “apply[] for a religious exemption,” she “assume[d] [she] w[ould] get it granted.”  . . .  And she expressed no qualms with any additional preventative requirements (like masking) that she would face as an unvaccinated employee if [her employer] did grant her exemption. Neither does [she] claim that she knew of anyone who had been denied an exemption or fired for religious beliefs.

[The plaintiff] points to the fact that, as of September 13, [her employer] had granted only 10% of the total number of religious exemption requests it eventually approved (76 out of 760). She frames this as evidence that [it] intended to withhold accommodations. But [she] presents no evidence of the percentage of requests made by September 13 that [it] had granted (or failed to grant). And [the employer] offered uncontested testimony that “[they] weren’t holding exemptions”; instead, “a whole bunch of these [requests] came in at . . . or immediately prior to the deadline” on September 15.  . . .  What’s more, [the plaintiff] does not allege that she knew about this data at the time of her alleged opposition, so it couldn’t have formed the basis of any reasonable belief.  . . .  Without some objective basis to ground her subjective fear of unlawful activity, [her] conduct did not amount to protected opposition.

Because the plaintiff failed to identify any protected activity which could support an actionable retaliation claim, the Court did not address the remaining elements of a retaliation claim or engage in any burden shifting or discussion of pretext.  It also dismissed her state law claims. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.