From Gustilo v. Hennepin Healthcare System, Inc., decided today by Eighth Circuit Judge James Loken, joined by Judges Ralph Erickson and Steven Grasz:
Dr. Tara Gustilo, an Asian American woman of Filipino descent, is an obstetrician-gynecologist physician…. She served as Department Chair [of the OBGYN Department of Hennepin Healthcare System, Inc. (“HHS”), a subsidiary of Hennepin County] from 2015 until April 2021, when she was demoted from that position….
Before 2020, she received generally positive performance reviews. In the spring of 2020, the COVID-19 pandemic and George Floyd’s murder by Minneapolis police officers produced stress and conflict within the Department that led OBGYN physicians to question Dr. Gustilo’s leadership.
— In April 2020, the Mpls. St. Paul Magazine noted in a complimentary article that Dr. Gustilo posted in March a “OB/GYN Improvement” fundraising link on her public Facebook account, identifying herself as HHS’s OBGYN Department Chair. In the following months, Dr. Gustilo made a series of posts on that Facebook account concerning controversial political issues including presidential candidates, fascism, racism, police killings, Black Lives Matter, socialism, and COVID. She used the phrase “China virus” to refer to COVID-19 in one post, which some colleagues considered racist. In a September 2023 Declaration, Dr. Gustilo stated that in May 2020, “I began to educate myself on the Black Lives Matter movement, critical race theory ideology, police brutality, and the dissemination of information in the United States.” She began to identify “as a classical liberal,” advocating for civil liberties, economic and political freedom, and freedom of speech. “I also began to voice my opposition to critical race theory on my personal Facebook page, as well as in appropriate settings at HHS,” because CRT theorists “reject the principle of equality under the law” and “warn[ ] people of color against ‘internalized whiteness.'”
—Also in April 2020, HHS cut midwife salaries as part of its budget reduction. Dr. Gustilo asked Department physicians to donate a portion of their salaries to the midwives. Most voted anonymously against the proposal. Dr. Gustilo then asked members to re-vote by sending personal emails. When the re-vote passed, some Department physicians were upset and felt pressured to vote for the proposal.
—In the wake of George Floyd’s murder in May 2020, a Department physician proposed sending a letter “that pledges our support for our patients.” When Dr. Gustilo edited the draft letter to replace the word “unrest” with the word “riots” in discussing protests that occurred following the murder, several members “pushed back” against shifting the focus away from issues of inequality and injustice. As the only black OBGYN in the Department put it, our patients “want to know we are taking active steps to dismantle systemic racism within the healthcare system.”
—In June 2020, certain Department members participated in a rally at the State Capitol held by White Coats for Black Lives, a medical student-led organization advocating for racial justice. Dr. Gustilo supported participation but not if OBGYNs displayed their affiliation with HHS while engaging in political activity. After the event, its organizers thanked HHS for participating. One speaker at the event had advocated for “defunding the police.” Dr. Gustilo sent an email to Department providers opposing that idea and urging research in the future to avoid identifying HHS with controversial political stances. This resulted in multiple contrary replies and animated discussion.
—At a July 2020 Board retreat, Dr. Gustilo allegedly said, “systemic racism ended in the ’60’s, so why are we still talking about it.” On August 5, 2020, the HHS Board of Directors adopted a Declaration of Health Equity as a strategic priority, adapted from an Institute for Healthcare Improvement white paper. The Board resolved “that HHS will support local, state, regional, and federal initiatives that advance efforts to dismantle individual to institutional to systemic racism and will promote community efforts to amplify issues of racism and its impact on health.”
—In September 2020, four Department physicians approached Dr. David Hilden, then Vice President of Medical Affairs at HHS, to discuss concerns they had about Dr. Gustilo. According to Dr. Hilden, the physicians told him their division was “imploding” under Dr. Gustilo’s leadership —she would not listen to their concerns, was intimidating, and frequently lectured them about her personal views on issues that had nothing to do with the provision of care in a clinical setting, primarily the murder of George Floyd and COVID-19. They felt bullied by their boss and said they would leave HHS if Dr. Gustilo remained Chair. Following this meeting, Dr. Hilden and Chief Medical Officer Dr. Daniel Hoody met with Dr. Gustilo to present concerns raised by the four physicians. Dr. Hilden testified that Dr. Gustilo “was pretty defiant” —she brought up politics, critical race theory, the presidential election, and police funding. After further inquiry and discussions with the complaining physicians and Dr. Gustilo, Dr. Hilden and Dr. Hoody hired Human Systems Dynamic Institute (“HSDI”) to survey the OBGYN Department and assess the work environment under Dr. Gustilo.
—The HSDI survey results were overwhelmingly negative. The final HSDI report indicated that, among other things, Gustilo was “chronically” late, did not attend meetings she scheduled, disparaged or rejected the perspectives and concerns of others in the Department, did not collaborate, and lashed out. OBGYN physicians expressed being “afraid or traumatized or triggered” in their personal interactions with Dr. Gustilo. Department members believed there was no way forward under Dr. Gustilo’s leadership and threatened to leave HHS if she remained Chair. Shortly thereafter, HHS received the results from Dr. Gustilo’s “360 review,” a regularly-scheduled evaluation conducted in the middle of a Department Chair’s five-year term. Dr. Hilden testified that Gustilo’s review was “one of the worst ones on record … devastatingly bad,” indicating she would not have been retained for a second term as Chair if she had not been demoted.
Following the HSDI report and 360 review, Dr. Gustilo attended several meetings with Dr. Hoody and Jennifer Hauff, HHS Human Resources Manager. Seeing “no path forward” with Dr. Gustilo as Chair, Dr. Hoody requested that she voluntarily step down. She refused, claiming that HHS was attempting to demote her because of her political beliefs in “opposition to the Marxist and racist Critical Race Theory ideology.” She was placed on involuntary leave. Dr. Laura Nezworski, whom Dr. Gustilo described as “a good choice,” became interim Department Chair.
At the last of several meetings in early 2021, Dr. Nezworski presented a letter signed by thirteen of the OBGYN Department’s fourteen physicians stating they could not “return to a place … where [Dr. Gustilo] could regain [their] trust.” Despite this mounting pressure, Dr. Gustilo declined to permanently step down. HHS then initiated its Chair removal procedures, a two-step process prescribed by the Medical Staff Bylaws. First, two-thirds of the members of HHS’s Medical Executive Committee (“MEC”) must vote for removal. If they do, the HHS Board must approve the MEC’s vote. The action proposed was limited to removing Dr. Gustilo as Department Chair. It would not affect her standing in the Department as an OBGYN physician with academic and clinical responsibilities.
Dr. Hilden scheduled a meeting to vote on Dr. Gustilo’s removal. Before the April 13 MEC meeting, he provided MEC voting members with an information packet he created (the “Hilden Packet”) and a packet Dr. Gustilo prepared. The Hilden Packet included communications with other HHS physicians regarding concerns about Dr. Gustilo, emails between Dr. Gustilo and other Department members, Dr. Gustilo’s performance reviews, and the HSDI report. The Hilden Packet contained numerous references to Dr. Gustilo’s controversial Facebook posts. After discussion, the MEC voted to remove Dr. Gustilo by a vote of twenty-five to one, with Dr. Gustilo casting the only contrary vote.
Following the MEC vote, Dr. Hilden sent a memorandum (“Hilden Memo”) to the Board outlining the “basis for [the MEC] decision.” The Hilden Memo listed five reasons why the MEC voted to remove Dr. Gustilo as Department Chair:
[1] Dr. Gustilo had lost the support of her colleagues which is a critical element of being a departmental leader and necessary for the continued success of the department [2] As a Department Chair, Dr. Gustilo had 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 [3] As a leader, Dr. Gustilo had not accepted responsibility, but rather blamed staff without apology [4] Dr. Gustilo failed to change and adapt to the environment in ways needed to support the team [5] Dr. Gustilo was not meeting critical elements of the Chair’s job responsibilities….
On April 28, the Board unanimously approved Dr. Gustilo’s removal as Chair.
Gustilo sued over the demotion, in part on First Amendment grounds, claiming that she was demoted in part based on her Facebook posts. The district court concluded that “Gustilo fails to create a genuine issue of material fact regarding whether the HHS Board”—the ultimate decisionmaker in the case—”considered her Facebook posts in making its decision to demote her.” But the Eighth Circuit panel disagreed:
[T]he second of Dr. Hilden’s five “bullet points” almost certainly referred to issues raised in Dr. Gustilo’s Facebook posts. Dr. Hilden’s Packet made clear that the Department OBGYN physicians had repeatedly complained about the media posts and Dr. Gustilo’s aggressively pursuing those issues at work. Moreover, the district court did not acknowledge, and may not have been aware, that two members of the Board were also members of the MEC and therefore knew from the Hilden Packet that media posts were a significant part of what was viewed as Dr. Gustilo’s leadership failures, even though the Hilden Memo carefully avoided any specific mention of the media posts….
We conclude that [whether the HHS Board ratified lower-level decisionmakers’ reliance on Gustilo’s speech] is a fact issue that cannot be decided as a matter of law on this summary judgment record. Therefore, we must remand for further consideration of ratification and other legal issues, beginning with whether Dr. Gustilo’s Facebook posts are protected speech, and perhaps the development of a full record if the ratification and other issues require a trial.
The additional threshold question whether Dr. Gustilo’s media posts are First Amendment protected was not addressed by the district court and warrants comment. The governing standard is well established but difficult to apply:
Whether a public employee’s speech is protected by the First Amendment requires a two-step judicial inquiry. The first issue is whether the employee’s speech can be “fairly characterized as constituting speech on a matter of public concern.” If the speech addresses a matter of public concern, the court must balance [under the so-called Pickering test] the “interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Both of these question are questions of law for the court.
Any underlying factual disputes concerning whether the plaintiff’s speech is protected, however, should be submitted to the jury through special interrogatories or special verdict forms.
Here, there can be little doubt that the subjects addressed in Dr. Gustilo’s media posts were matters of public concern. That means the district court will need to apply the flexible Pickering balancing test; to do that, we weigh six interrelated factors. This is a complex task. In the district court, HHS argued that at least two of those factors “weigh decisively in HHS’s favor,” an assertion we decline to take up on appeal….
