Gustilo v. Hennepin Healthcare System, Inc.

Background

Tara Gustilo sued Hennepin Healthcare System, Inc. (HHS), alleging that HHS’s Board of Directors approved the Medical Executive Committee’s decision to remove her as chair of the Obstetrics and Gynecology Department in retaliation for posts on her personal Facebook page. She also brought race-discrimination claims and retaliation or reprisal claims under Title VII and the Minnesota Human Rights Act.

The court had previously granted summary judgment—a decision without a trial when there is no genuine dispute about an important fact—in HHS’s favor on all claims. The Eighth Circuit reversed and sent back only the First Amendment retaliation claim, finding a factual dispute about whether the Board considered Gustilo’s Facebook posts when approving her removal. The appeals court did not then review the Title VII and Minnesota Human Rights Act claims, but stated that the district court could reconsider those rulings if the record changed.

The new record included a video of the April 28, 2021, Board meeting. The video showed discussion of Gustilo’s leadership, her workplace discussions of political and racial issues, concerns about the department’s functioning, and the Board’s unanimous decision to approve her removal as chair. The record also contained evidence that many physicians had lost confidence in her leadership, while other evidence attributed the disruption mainly to her conduct at work rather than to her Facebook posts.

HHS’s Supplemental Summary-Judgment Motion

HHS argued that Gustilo’s Facebook posts were not protected by the First Amendment. The Eighth Circuit had already determined that the posts concerned matters of public concern. The district court therefore focused on whether the posts caused an actual or reasonably foreseeable disruption and, if so, whether the government employer’s interests outweighed Gustilo’s interest in speaking as a citizen. This balancing test is commonly called the Pickering test.

The court found substantial evidence of disruption. The evidence included a reported “fracturing” within the department, concerns that roughly one-quarter to one-third of the physicians might leave, physicians’ reluctance to have Gustilo conduct their performance reviews, and a letter signed by 13 of the department’s 14 physicians expressing a loss of trust. A reasonable jury could find that the Facebook posts caused at least part of that disruption.

But the court found genuine disputes about several facts relevant to the Pickering balancing. Those disputes included whether the public nature and manner of the posts made them especially disruptive, whether the posts were connected to workplace disputes or were primarily commentary on national issues, how much public interest the posts deserved, and whether the Facebook posts or Gustilo’s on-duty conduct primarily caused the loss of support for her leadership.

Because these factual questions could affect whether the Facebook posts were protected, the court concluded that a jury’s findings would be needed before the court could conduct the final legal balancing. The court therefore denied HHS’s Supplemental Motion for Summary Judgment.

Gustilo’s Motion for Reconsideration

Gustilo asked the court to reconsider its prior summary judgment ruling on her race-discrimination and retaliation or reprisal claims. The court considered the new video and expanded record but found no genuine dispute of material fact on those claims.

For the race-discrimination claims, the court found no evidence connecting Gustilo’s demotion to her race or to her identity as a woman of Filipino descent. The court said the evidence focused on her conduct and viewpoints, not on race. It also found that the timing of the events showed a change in Gustilo’s views rather than a change based on her race, and that her proposed comparison to her successor did not show that a similarly situated person had engaged in similar conduct and received different treatment.

For the Title VII retaliation and Minnesota Human Rights Act reprisal claims, the court found that Gustilo had not identified a specific employment practice she opposed or evidence that she said the practice violated either law. The court also found no evidence that HHS knew she was opposing an employment practice protected by those statutes. The court therefore denied reconsideration on the retaliation and reprisal claims.

Disposition

Judge Susan Richard Nelson ordered:

1. HHS’s Supplemental Motion for Summary Judgment was DENIED. 2. Gustilo’s Motion to Reconsider Summary Judgment was DENIED.

The court thus left the First Amendment retaliation claim unresolved on summary judgment because of disputed facts, while reaffirming its prior grant of summary judgment for HHS on the Title VII and Minnesota Human Rights Act race-discrimination and retaliation or reprisal claims.