Workplace retaliation under the ADA (42 USC § 12203(a)) & Title VII (§ 2000e-3(a)); “Protected activity”; Participation; Opposition

The court held that defendants-employer and others were properly granted summary judgment on plaintiff-DiChiara’s Title VII and ADA employment-retaliation claims because she did not establish that she engaged in “protected activity.” DiChiara, a physician, worked for St. Elizabeth Physicians (SEP), a subsidiary of defendant-St. Elizabeth. During COVID-19, her employers announced future mandated vaccinations. What followed was a series of interactions with like-minded individuals, including an attorney who had been disbarred. She also emailed the individual defendants, the presidents and CEOs of SEP and St. Elizabeth. Frustrated with the lack of a policy change, “she arranged for a petition and a summary of the group’s medical concerns and proposed policy changes to be circulated to hospital leadership.” She shared some of the related email communications with the attorney, asking him to keep them private. However, they were attached to the complaint in a lawsuit (to which she was not a party). She apologized to the individual defendants, and later received a religious exemption from the vaccination mandate. She was fired weeks later. Her termination letter alleged “misappropriation of company property, disruptive and unprofessional conduct, and breach of loyalty as ‘for-cause’ reasons for” the decision. On appeal, the court considered her Title VII and ADA retaliation claims under the same standards. It held that she failed to show that she was retaliated against for engaging in protected activity where she did not participate in the Title VII litigation. It concluded that her “pre-lawsuit emails constitute indirect assistance at best” and that this was not enough. The court also determined that without “some objective basis to ground her subjective fear of unlawful activity, DiChiara’s conduct did not amount to protected opposition.” Affirmed.