Labor & Employment Law Daily Wrap Up, RETALIATION—6th Cir.: Physician, fired after sharing internal emails concerning COVID-19 policy, cannot revive claims, (Jul 15, 2026)

By Todd Harrison, J.D.

Merely communicating her concerns with an attorney, without being a party to litigation, reflected neither participation nor opposition with regard to engaging in protected activity.

Affirming a district court’s grant of summary judgment against the federal and state-law claims asserted by a physician against her former employer following her termination for sharing internal communications with an attorney, the Sixth Circuit determined that the employee had not engaged in protected activity for Title VII or ADA purposes when she divulged the communications. The court explained that participation under these statutes must be “direct,” such as being a party to a lawsuit, and the employee was not a party to a lawsuit and never intended to seek litigation concerning her employer’s vaccination policy. As to opposition, the employee may have subjectively believed the policy was unlawful, but any such belief still needs to be objectively reasonable, which was not the case here (DiChiara v. Summit Medical Group, Inc., No. 25-5396 (6th Cir. July 13, 2026)).

Vaccination policy. The employee in this case worked as a gastroenterologist for Saint Elizabeth Physicians. On August 5, 2021, the employer announced a COVID-19 vaccination policy requiring all employees to receive a vaccine by October 1 unless they had been granted a religious or medical exemption. The employee had both scientific and religious objections to the policy.

Attorney communications. While deciding the best way to approach the situation, the employee came across a Facebook post from an attorney who had been using social media to advertise a litigation plan to fight against the vaccination policy at Saint Elizabeth and other area hospitals. The employee emailed the attorney seeking advice on her planned response to the policy. She explained that she intended to present her medical and scientific concerns about the policy to hospital executives but did not plan to mention any religious objections at the moment. The attorney offered to help the employee and began to include her in group-email communications.

Eventually, the attorney asked the group-email recipients to sign a client contract for a class action. The employee did not sign the contract, nor did she ask the attorney’s law firm to represent her.

Meanwhile, the employee presented her concerns to hospital leadership, afterwards arranging for a petition to be circulated calling for proposed policy changes. As she prepared to circulate the petition, the employee emailed the attorney expressing her frustration that the executives had not responded to her request for a change in policy. She shared a draft of her petition letter and later forwarded the attorney other emails she had exchanged with hospital leadership, asking that he not share those details publicly.

Public disclosure. On August 31, a group of medical staff sent the petition signed by 47 medical professionals to the hospital’s board. Shortly thereafter, the attorney sent out a group email containing the names of all the physicians who had signed the petition. The employee reminded the attorney that she wanted to work internally without publicizing confidential information.

Subsequently, the attorney filed a lawsuit against the hospital. His complaint included the emails forwarded to him by the employee. Her requests to remove the emails from his exhibits were ignored and the employee was never part of this litigation.

Termination. As the vaccination deadline loomed, the employee applied for and received a religious exemption. Shortly thereafter, she was fired for misappropriation of company property, violations of company policy, unprofessional conduct, and breach of loyalty, all of which were characterized as “for-cause” reasons for termination.

Lawsuit. Following her termination, the employee sued, asserting claims for retaliation under Title VII and the ADA, as well as state-law claims for retaliation, discharge against public policy, and contract claims. The district court granted the employer’s motion for summary judgment against all claims and this appeal followed.

Participation. First, the court addressed the employee’s Title VII and ADA claims for retaliation. The employee contended 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.” However, the court explained that this type of indirect assistance did not qualify as protected conduct under the participation clause.

Previously, the court noted that it had held that participation must be “direct.” Examples of direct participation would include being a party to a lawsuit, providing deposition testimony, or responding to a subpoena, explained the court. It also noted that it has 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.

In this instance, the employee was not a party to the lawsuit and her own statements reflected that she never intended to seek litigation. Although she argued that the forwarded emails constituted protected activity because she sent them as “ammunition” to help the attorney build his case, the court found this type of assistance to be indirect “at best.” The employee presented no evidence of direct participation in a Title VII or ADA proceeding, no lawsuit was pending at the time she forwarded the emails, and she was not a party to the lawsuit when it was filed. Thus, her conduct could not be said to qualify as direct participation.

Opposition. Turning to the question of opposition, the employee contended that the forwarding of the emails constituted protected opposition. Taking the facts in the employee’s favor, the court noted that she may have subjectively believed the vaccine mandate was unlawful under Title VII or the ADA. However, the court explained that any such belief still needs to be objectively reasonable.

Here, no reasonable person could have believed the facts known to the employee amounted to a violation of Title VII or the ADA, said the court. The vaccine policy was facially legal, promising religious and medical accommodations, and the employee proffered no indication that she thought otherwise. Thus, she needed some additional basis to think the employer would act unlawfully.

According to the court, the employee failed to provide this type of crucial evidence. At the time, she had not yet applied for a religious exemption and had no information concerning how the employer would process her request. Without some objective basis to ground her subjective fear of unlawful activity, the court found the employee’s conduct did not amount to protected opposition and her prima facie case failed. So too went her state-law retaliation claim. Accordingly, the grant of summary judgment against these claims was affirmed.

Public policy. Next, the court addressed the employee’s argument her termination violated public policy because it was based in part “on her refusal to waive the attorney-client privilege.” Kentucky recognizes a “cause of action for retaliatory discharge” for at-will employees when the discharge is “contrary to a fundamental and well-defined public policy as evidenced by existing law.” This tort is “narrow” and functions as an “exception” to the general rule that “at-will employee[s] may be discharged for good cause, for no cause, or for a cause that some might view as morally indefensible.”

The court noted that Kentucky has applied this tort only to “terminable-at-will” employees, and the employee in this case could not be said to be an “at-will” employee. Nevertheless, the employee asked the court to extend its policy to contract employees, contending there was no reason that the Kentucky Supreme Court would not do the same. The court was not moved, finding no authoritative signal to suggest an expansion of the tort, and affirmed the grant of summary judgment against this claim.

Breach of contract. Finally, the court considered the employee’s claim that the employer breached its contract when it fired her for cause. The court explained that the employee had violated the terms of her employment, so there was no breach, and summary judgment was appropriate against this claim. Her remaining state-law claims were contingent on this claim and thus failed as well.

The case is No. 25-5396.

Judge: Larsen, J.

Attorneys: Thomas Bernard Bruns (Bruns, Connell, Vollmar & Armstrong) for Amy DiChiara. Nicholas C. Birkenhauer (Dressman Benzinger LaVelle) for Summit Medical Group, Inc. dba St. Elizabeth Physicians, St. Elizabeth Medical Center, Inc. dba St. Elizabeth Healthcare, Robert Prichard, and Garren Colvin.

Companies: Summit Medical Group, Inc.; St. Elizabeth Physicians; St. Elizabeth Medical Center, Inc.; St. Elizabeth Healthcare

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