Minneapolis Doctor Sufficiently Alleged Demotion Based in Part on Anti-Woke Speech in 2020
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 th
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