by Greg Piper
“Can a workplace demand ideological conformity from employees, especially when those employees are expected to represent certain racialized or gendered perspectives?”
That’s the core issue in a reinstated lawsuit by a Filipina-American doctor with black children who alleges a witch hunt by her former Minneapolis public hospital for criticizing the Black Lives Matter movement and critical race theory, calling COVID-19 the “China virus” and categorizing protests against George Floyd’s death as “riots,” according to her lawyer.
The 8th U.S. Circuit Court of Appeals unanimously overturned a lower court’s summary judgment for Hennepin Healthcare System, a subsidiary of Hennepin County, on Tara Gustilo’s First Amendment retaliation claim and remanded the case for further proceedings.
The three-judge panel faulted U.S. District Judge Susan Richard Nelson for usurping a jury by determining the HHS board approved Gustilo’s removal as OB-GYN department chair without also adopting the Medical Executive Committee’s basis for removing her: Gustilo’s Facebook posts on BLM, CRT and COVID among other subjects.
Nelson, nominated by President Obama, also didn’t determine the “threshold question” of whether her posts are protected by the First Amendment, the panel said. “Here, there can be little doubt” that Gustilo commented on “matters of public concern,” so Nelson must perform the so-called Pickering balancing test for government employee speech.
The panel opted not to reinstate Gustilo’s allegations of “unlawful race discrimination and retaliation/reprisal” under Title VII of the Civil Rights Act and Minnesota Human Rights Act, because Nelson “will have discretion to revisit” her summary judgment on those issues in the runup to a possible First Amendment trial, Judge James Loken wrote.
The case “forces us to reckon with the boundaries of free speech in professional settings and the consequences of challenging institutional ideologies,” Gustilo’s lawyer Daniel Cragg wrote for the Foundation Against Intolerance and Racism, which is funding her case.
The Upper Midwest Law Center, also representing Gustilo, filed a U.S. Equal Employment Opportunity Commission complaint on her behalf in 2021 as a precursor to litigation, amid its broader push against BLM and CRT in public institutions by minorities who objected to it.
HHS never had a problem with Harvard-educated Gustilo, who “created a program to reflect cultural differences in birthing practices to better serve her diverse patients,” until she criticized colleagues for turning the program into “racially segregated care” and they demanded her obeisance as a minority to “race-essentialist views,” FAIR’s case page says.
The retaliation lawsuit resembles that of Tabia Lee against her Silicon Valley community college district after it declined to renew the black woman’s contract as tenure-track faculty director of its Office of Equity, Social Justice, and Multicultural Education, allegedly based on her criticism of its “empty ‘antiracism’ gesture[s],” antisemitism and anti-white actions.
FAIR is also sponsoring Lee’s suit, which was dismissed by a trial court this spring but amended with new allegations. The court heard arguments on Foothill-De Anza Community College District’s motion to dismiss two months ago and held an “initial case management conference” with the parties Dec. 4, the most recent activity in the docket.
The 8th Circuit panel was nominated by Republican presidents George H.W. Bush, George W. Bush and Donald Trump. Two of the three have ruled in similar speech challenges: in favor of teachers who were fined for suing to block antiracism training and against conservative students suing the University of Minnesota.
“Before 2020, [Gustilo] received generally positive performance reviews” and a local magazine praised her in April 2020 for using her public Facebook account, identifying herself as OB-GYN chair, to promote a fundraiser for “OB/GYN Improvement,” Loken’s opinion summarizes.
But clashes with other HHS staff soon followed, based on Gustilo’s Facebook posts, perceived pressure from her to “donate a portion of their salaries” to midwives whose salaries had been cut by HHS and her objection to OB-GYNs using their HHS affiliation to support “White Coats for Black Lives” and particularly “defunding the police.”
The HHS board adopted a “Declaration of Health Equity” to support government initiatives against “systemic racism” a month after a board retreat at whcih Gustilo allegedly asked “why are we still talking about” systemic racism, which “ended in the ‘60’s,” Loken summarized.
Four physicians in her department threatened to quit if then-Vice President of Medical Affairs David Hilden didn’t remove Gustilo as chair, saying they felt “bullied” and she “frequently lectured them about her personal views” on Floyd’s death and COVID. Hilden testified she was “pretty defiant” when confronted with the allegations.
The results of a consulting firm’s survey of employees were “overwhelmingly negative” against Gustilo, accusing her of being “chronically” late, not attending her own meetings, uncollaborative and disparaging toward others’ views, Loken wrote. That was soon followed by her midterm review as chair, which Hilden called “one of the worst ones on record.”
Gustilo was put on involuntary leave after refusing to step down, accusing leadership of discrimination for her “opposition to the Marxist and racist Critical Race Theory ideology,” Loken quoted her. HHS started removal proceedings after all but one physician in her department said she couldn’t regain their trust.
The Medical Executive Committee reviewed Hilden’s “information packet,” which included “numerous references” to Gustilo’s Facebook posts, before unanimously voting to remove her.
Hilden’s memo to the HHS board summarized the basis for the committee’s vote, including that Gustilo “raised issues at work that are not related to the job duties and ultimately negatively impacted the staff and created a poor environment in the department,” which the 8th Circuit panel believes referred in part to her Facebook posts. Two board members were also on the committee and knew her posts were “a significant part” of her perceived failures.
“Though there is record support for HHS’s contention” that the board didn’t know about Gustilo’s Facebook posts, “the difficulty, as we see it, is that ratification is an issue of fact for a jury if there is a material fact dispute,” Loken wrote for the panel.
Judge Nelson used the wrong standard on a summary-judgment motion to decide Gustilo had not raised a “material issue of fact” on the basis for the board’s removal, and it’s not clear Nelson even knew the board included two committee members who knew the role of Gustilo’s Facebook posts in its vote against her, the opinion says.
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Just the News reporter Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education.
Image “Dr. Tara Gustilo” by FAIR.org.
