Gustilo v. Hennepin Healthcare Sys.

1

Dr. Tara Gustilo, M.D. Plaintiff - Appellant v. Hennepin Healthcare System, Inc. Defendant-Appellee

No. 23-3512

United States Court of Appeals, Eighth Circuit

December 9, 2024

Submitted: June 11, 2024

Appeal from United States District Court for the District of Minnesota

Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.

LOKEN Circuit Judge.

Dr Tara Gustilo, an Asian American woman of Filipino descent, is an obstetrician-gynecologist physician. She graduated from Mayo Medical School in 1994 and completed her residency in obstetrics and gynecology at Duke University. In 2008, Dr Gustilo began working in the Department of Obstetrics and Gynecology ("OBGYN Department") of Hennepin Healthcare System, Inc. ("HHS") (then called Hennepin County Medical Center), a subsidiary of Hennepin County. See Minn. Stat. § 383B.901. She served as Department Chair from 2015 until April 2021, when she was demoted from that position. In February 2022, after filing charges relating to the demotion with the Equal Employment Opportunity Commission ("EEOC") and receiving permission to sue, Dr. Gustilo commenced this action against HHS, alleging race discrimination and retaliation/reprisal violations of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act ("MHRA"), and deprivation of her First Amendment rights in violation of 42 U.S.C. § 1983.

Following extensive discovery, the district court granted HHS's motion for summary judgment, finding no genuine dispute of material fact as to the race discrimination, retaliation/reprisal, and First Amendment claims. Dr. Gustilo appeals. We review the grant of summary judgment de novo, viewing the facts in the light most favorable to Dr. Gustilo, the non-moving party. Goldsmith v. Lee Enters., Inc., 57 F.4th 608, 610 (8th Cir. 2023) (standard of review). We reverse the grant of summary judgment on the First Amendment retaliation claim and remand for further proceedings.

I. Background

As Chair of the OBGYN Department, Dr. Gustilo was tasked with significant leadership, academic, and clinical responsibilities. 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....