Sixth Circuit Narrows “Participation” Retaliation Protection to Direct Involvement in Title VII/ADA Proceedings

1. Introduction

Dr. Amy DiChiara, a gastroenterologist employed by St. Elizabeth Physicians (SEP) within the St. Elizabeth Healthcare system, opposed her employer’s 2021 COVID-19 vaccination policy requiring vaccination absent a medical or sincerely held religious exemption. After internal advocacy focused on scientific objections, she privately forwarded internal emails (including exchanges with SEP and system leadership) to Eric Deters/Deters Law, which later filed litigation against SEP and St. Elizabeth and attached DiChiara’s emails as exhibits. SEP terminated DiChiara “for cause,” citing misappropriation of company property, policy violations, disruptive conduct, and breach of loyalty, and enforced a contractual non-compete.

DiChiara sued asserting, among other claims, federal retaliation under Title VII and the Americans with Disabilities Act (ADA), Kentucky Civil Rights Act retaliation, Kentucky wrongful discharge in violation of public policy, and breach of contract. The district court granted summary judgment to defendants; the Sixth Circuit affirmed.

2. Summary of the Opinion

The Sixth Circuit affirmed summary judgment across the board. It held that DiChiara failed to establish a prima facie case of Title VII/ADA retaliation because she did not engage in protected activity: (i) she did not “participate” in a Title VII/ADA proceeding given the lack of direct involvement in an ongoing statutory proceeding, and (ii) her conduct did not qualify as protected “opposition” because no objectively reasonable person in her circumstances would have believed SEP’s vaccine policy (which provided for medical and religious exemptions) was unlawful on the facts known to her at the time.

Her Kentucky retaliation claim failed for the same reasons (KCRA mirrors federal analysis). Her Kentucky public-policy discharge claim failed because Kentucky cabins the tort to at-will employment, and DiChiara worked under a contract specifying term and termination modes. Her breach of contract claim failed because forwarding internal emails breached contractual and policy-based grounds permitting for-cause termination; the remaining state claims fell with the contract claim.

3. Analysis

3.1 Precedents Cited

Summary judgment / standards of review

• Franklin Am. Mortg. Co. v. Univ. Nat'l Bank of Lawrence: supplied the Sixth Circuit’s Rule 56 framing (no genuine issue of material fact; entitlement to judgment as a matter of law) and the requirement to view facts in the nonmovant’s favor.
• Jones v. City of Elyria: confirmed that Kentucky substantive law governs the state-law claims in federal court.

Retaliation framework (Title VII / ADA / KCRA)

• Poe v. Memphis Light, Gas & Water Div. and Kelly v. Graphic Packaging Int'l, LLC: used for the proposition that Title VII and ADA retaliation claims are analyzed the same way in the Sixth Circuit.
• Niswander v. Cincinnati Ins. Co.: provided the Sixth Circuit’s prima facie elements for retaliation (protected activity, employer knowledge, adverse action, causal connection) and articulated the burden-shifting structure (though the court never reached pretext because protected activity failed). It also framed the participation clause as protecting employees who “utilize the tools provided by Congress.”
• Abbott v. Crown Motor Co.: referenced to note that direct evidence could bypass burden shifting, but DiChiara did not challenge the district court’s finding that she lacked direct evidence.
• Curtis v. Hanger Prosthetics & Orthotics, Inc.: supported the conclusion that KCRA retaliation is analyzed consistently with Title VII, so the federal protected-activity analysis controlled the state retaliation claim.

Participation vs. opposition: the controlling distinction

• Booker v. Brown & Williamson Tobacco Co.: central authority emphasizing the “significant” distinction between the opposition and participation clauses and holding that conduct “prior to the instigation of statutory proceedings” falls under opposition, not participation—preventing the doctrines from “blur[ring].”
• Johnson v. Univ. of Cincinnati (quoting Booker v. Brown & Williamson Tobacco Co.): cited for broad protection once an employee is within participation, even if the charge is wrong or malicious—used by the court to justify why a clear, limited threshold for “participation” is necessary.
• Hashimoto v. Dalton (Ninth Circuit): cited (via Niswander v. Cincinnati Ins. Co.) for the “tools provided by Congress” conception of participation.
• Aldrich v. Rural Health Servs. Consortium, Inc.: the key analog. Even with an ongoing discrimination suit, the Sixth Circuit found no participation where the employee forwarded emails to herself and was not directly involved in litigation or responding to attorneys/subpoenas. The DiChiara panel used Aldrich to underscore that “direct” involvement (party status, deposition, subpoena response) is the participation touchstone.
• Fox v. Eagle Distrib. Co.: cited to justify looking across Title VII/ADEA retaliation precedents due to similar anti-retaliation language—supporting the use of Aldrich (ADEA) in this Title VII/ADA context.

Opposition clause: objective reasonableness requirement

• Yazdian v. ConMed Endoscopic Techs., Inc.: supplied the two-part opposition test: the employee must challenge a practice she reasonably believes unlawful, requiring both subjective belief and objective reasonableness; also noted objective reasonableness can be decided as a matter of law where no reasonable person could see illegality on the known facts.
• Weeks v. Harden Mfg. Corp. (Eleventh Circuit): cited alongside Yazdian to reinforce the subjective/objective structure of “reasonable belief.”

Kentucky public policy wrongful discharge: confined to at-will employment

• Grzyb v. Evans: established Kentucky’s narrow public policy exception for at-will employees discharged contrary to fundamental, well-defined public policy evidenced by law.
• Marshall v. Montaplast of N. Am., Inc.: emphasized the tort’s narrowness, its role as an exception to the at-will doctrine, the requirement that public policy be evidenced by constitutional/statutory provision, and that applicability is a question of law.
• Carlozzi v. Perkins L. Grp. and Steele v. Liberty Life Ins. Co.: cited for the proposition that having an employment contract generally negates at-will status.
• Hall v. Rag-O-Rama, LLC (Sixth Circuit) and Shah v. Am. Synthetic Rubber Corp.: cited for the additional point that a contract can defeat at-will status if it governs association length and termination reasons/methods.
• Berrington v. Wal-Mart Stores, Inc. and US Framing Int'l LLC v. Cont'l Bldg. Co.: provided the federalism restraint principle—federal courts should not innovate state law absent authoritative state signals.
• Persuasive/contrasting out-of-state authorities were surveyed to show no national consensus for extending the tort to contract employees: Keeshan v. Eau Claire Coop. Health Ctrs., Inc.; Burns v. Bd. of Trs. of Robeson Cmty. Coll.; Hermreck v. United Parcel Serv., Inc.; Haynes v. Zoological Soc'y of Cincinnati.

Contract termination / cause / related claims

• Brett v. Media Gen. Operations, Inc.: cited for the proposition that where an employee violates terms of employment, termination consistent with those terms is not a breach.
• Jones v. St. Jude Med. S.C., Inc.: cited in rejecting an argument that forwarding internal documents was necessary to obtain legal advice, noting the absence of explanation for why policy violation was needed.
• Snow Pallet, Inc. v. Monticello Banking Co.: cited for the principle that absent breach, tortious interference fails.

Procedural backdrop of the earlier vaccine-policy suit

• Beckerich v. St. Elizabeth Med. Ctr., Inc.: referenced to situate the dismissed earlier lawsuit and the timing of DiChiara’s communications.

3.2 Legal Reasoning

A. Title VII / ADA retaliation — protected activity is the gatekeeper

The court treated “protected activity” as dispositive and did not proceed to causation, legitimate reason, or pretext. Its analysis crystallizes two doctrinal boundary lines that often decide retaliation cases: (1) when “participation” begins, and (2) how concrete the employee’s belief of illegality must be for “opposition.”

B. Participation clause — “direct involvement” as the Sixth Circuit’s threshold

The panel emphasized why participation must have a clear start: participation carries unusually broad immunity from employer retaliation, even where the underlying charge is meritless or malicious (drawing on Johnson v. Univ. of Cincinnati and Booker v. Brown & Williamson Tobacco Co.). The court therefore reiterated that participation protection is limited to direct involvement in a statutory proceeding—examples included being a party, giving deposition testimony, or responding to a subpoena (citing Aldrich v. Rural Health Servs. Consortium, Inc. and Niswander v. Cincinnati Ins. Co.).

Applying that standard, DiChiara’s conduct—emailing Deters and forwarding internal emails as “ammunition”—was “indirect assistance at best.” Critically, at the time she forwarded the emails, “no lawsuit was ongoing,” and in the later-filed lawsuit she was neither a party nor a witness; she also renounced involvement and fought a subpoena. These facts kept her conduct outside participation.

C. Opposition clause — speculation cannot satisfy objective reasonableness

The court assumed DiChiara may have subjectively feared SEP would retaliate or deny religious accommodation. But under Yazdian v. ConMed Endoscopic Techs., Inc., she also had to show objective reasonableness: that a reasonable person with her training and circumstances would believe SEP was violating Title VII or the ADA on the facts known at the time.

The court found that SEP’s policy was “facially legal” because it offered medical and religious exemptions, and DiChiara offered no contemporaneous evidence that SEP would process exemptions unlawfully—she had not applied yet, had avoided discussing religion with leadership, assumed her exemption would be granted, did not identify anyone denied an exemption, and did not show knowledge of any data suggesting systematic denial. With no objective grounding, her conduct did not qualify as protected opposition.

D. Kentucky wrongful discharge in violation of public policy — federal courts will not extend the tort

Kentucky’s tort is explicitly framed as a narrow exception to at-will employment (Marshall v. Montaplast of N. Am., Inc.; Grzyb v. Evans). Because DiChiara’s employment agreement set a term and defined termination methods (for-cause immediate termination vs. without-cause with notice), she was not at-will; thus the tort was unavailable.

The court then addressed DiChiara’s invitation to expand Kentucky law to contract employees and refused, invoking the Sixth Circuit’s restraint principle in state-law innovation (US Framing Int'l LLC v. Cont'l Bldg. Co.; Berrington v. Wal-Mart Stores, Inc.). It also undercut the “other states” argument by showing that several jurisdictions likewise limit the tort to at-will employment (citing Keeshan v. Eau Claire Coop. Health Ctrs., Inc., Burns v. Bd. of Trs. of Robeson Cmty. Coll., Hermreck v. United Parcel Serv., Inc., and Haynes v. Zoological Soc'y of Cincinnati).

E. Breach of contract — forwarding internal emails as contractual “cause”

The court treated the for-cause termination as contractually authorized on multiple independent grounds, and emphasized that even one established violation sufficed. It focused especially on misappropriation of SEP property: internal emails were SEP property by policy, and the agreement allowed termination for “[m]isappropriating any funds or property of SEP.” Forwarding internal emails to an outside law office therefore fit the contractual cause provision.

The court rejected DiChiara’s reliance on testimony suggesting employees may consult lawyers about rights, distinguishing seeking advice from forwarding confidential internal documents. It also noted DiChiara did not show why policy violations were necessary to obtain advice (citing Jones v. St. Jude Med. S.C., Inc.). With cause established, her derivative claims (tortious interference; declaratory relief as to the non-compete) fell as well (citing Snow Pallet, Inc. v. Monticello Banking Co.).

3.3 Impact

• Retaliation claims (Sixth Circuit): The decision strengthens an employer-favorable boundary: “participation” protection does not attach to pre-proceeding or indirect assistance—even if the employee’s materials later become exhibits in a filed complaint. Employees seeking retaliation protection must generally be able to point to direct engagement with an EEOC charge, lawsuit, subpoena, deposition, or comparable formal proceeding.
• Opposition activity: The case underscores that disagreement with a workplace policy—even one with high stakes—does not automatically become protected opposition. Without concrete facts suggesting the policy is being applied unlawfully (e.g., actual denial of an exemption, known discriminatory statements, disparate enforcement), fear of unlawful treatment may fail the objective reasonableness test as a matter of law.
• Handling confidential employer materials: The opinion implicitly warns that forwarding internal communications externally can create independent “cause” for termination under common confidentiality/communications policies—particularly where the employee cannot anchor the conduct in protected activity.
• Kentucky employment tort law in federal court: The court reaffirmed a strong “no state-law innovation” stance: absent Kentucky Supreme Court signals, federal courts will not extend Kentucky’s public policy wrongful discharge tort beyond at-will employees, even if plaintiffs present plausible policy arguments.

4. Complex Concepts Simplified

• “Participation” vs. “Opposition” (Title VII/ADA retaliation):
  • Participation = using formal enforcement mechanisms (e.g., EEOC charge, lawsuit participation, subpoena compliance, deposition testimony). It is broadly protected once it applies.
  • Opposition = informal resistance (complaints, objections, internal reports) to practices the employee reasonably believes are unlawful. It requires both genuine belief and that the belief be objectively reasonable based on what the employee knew then.
• “Objective reasonableness”: Not “could this ever be illegal,” but “would a reasonable person, knowing what this employee knew at the time, think the employer was violating the law.” Courts can decide this as a legal question when the evidence cannot support reasonableness.
• “For-cause termination” in a contract: When an employment agreement defines specific behaviors that justify immediate termination, a court generally asks whether the employee’s conduct fits those definitions and whether the employer acted within the contract’s process (e.g., notice).
• Federal courts and state-law expansion: In diversity/supplemental jurisdiction cases, federal courts apply state law but typically will not create new state-law doctrines without clear state-court संकेत (signals). That restraint featured prominently in rejecting expansion of Kentucky’s wrongful discharge tort.

5. Conclusion

DiChiara v. Summit Medical Group, Inc. is a precedential Sixth Circuit decision tightening the definition of protected “participation” activity in Title VII/ADA retaliation cases to require direct involvement in statutory proceedings, and reaffirming that “opposition” demands an objectively reasonable belief of illegality grounded in contemporaneously known facts. The court also reinforced two practical realities: Kentucky’s public-policy wrongful discharge tort remains confined to at-will employees absent Kentucky authority expanding it, and forwarding confidential internal employer emails externally can constitute contractual “cause” for termination when the employee cannot connect the conduct to legally protected activity.