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 (6th 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.
