Cholewa v. Robinson – Do It For The Caselaw

Holding: The court affirmed the district court's ruling that Dr. Robinson is not entitled to immunity under the Westfall Act for claims of sexual and romantic misconduct, but is entitled to immunity for claims of non-sexual professional negligence.
Standard: Scope of employment under the Westfall Act and Michigan tort law.
Vote: Unanimous decision by Judges Boggs, Nalbandian, and Mathis.
Practical effect: Federal employees who engage in sexual or romantic misconduct with patients may be personally liable for tort damages, even if they are otherwise acting within the scope of their employment for other professional duties.

The Sixth Circuit affirmed a district court ruling that a federal psychiatrist is not entitled to immunity under the Westfall Act for alleged sexual and romantic misconduct with a patient, while granting immunity for non-sexual professional negligence.

Background

Trey Cholewa, a Marine Corps veteran, sought psychiatric treatment from Dr. Jennifer Robinson at a Veterans Affairs facility. Cholewa alleged that Dr. Robinson engaged in a romantic and sexual relationship with him, leading to his divorce and emotional distress. He sued Dr. Robinson and the United States for medical malpractice, negligence, and battery. Dr. Robinson sought immunity under the Westfall Act, arguing she was acting within the scope of her employment. The district court initially denied immunity, then after a remand and evidentiary hearing, granted immunity only for non-sexual negligence while denying it for sexual and romantic conduct. Dr. Robinson appealed the denial of immunity for the sexual and romantic claims.

The court’s reasoning

The Sixth Circuit agreed with the district court that sexual and romantic misconduct by a psychiatrist is not within the scope of employment under Michigan law. The court found that such acts are personal and not in furtherance of the employer’s business. The court also affirmed the district court’s use of an adverse inference when Dr. Robinson invoked her Fifth Amendment right against self-incrimination during the hearing, as she failed to rebut the plaintiff’s evidence.

We disagree, so we affirm.

Cholewa v. Robinson, No. 25-1465 (6th Cir. 2026)

What it means going forward

Federal employees who engage in sexual or romantic misconduct with patients may be personally liable for tort damages, even if they are otherwise acting within the scope of their employment for other professional duties.