Dr. Tara Gustilo won a significant free-speech victory this week before the United States Court of Appeals for the Eighth Circuit against the Hennepin Healthcare System in Minnesota. She was removed from her position after criticizing Black Lives Matter, Critical Race Theory, and certain COVID narratives. An appellate panel rebuked U.S. District Judge Susan Richard Nelson for usurping the function of a jury in assuming facts and failing to apply the correct test for the free-speech claims in the case.
Dr. Gustilo is not someone that you would expect to be labeled as an extremist or racist in her workplace. The Filipina-American doctor had a stellar record, raised black children, and was credited with creating “a program to reflect cultural differences in birthing practices to better serve her diverse patients.” However, as FAIR has noted, she criticized her colleagues for turning the program into “racially segregated care” and objected to a certain orthodoxy over “race-essentialist views.”
Dr. Gustilo said that she was targeted after referring to COVID-19 as the “China Virus” and seeking to edit a reference to the violent protests after the death of George Floyd as “unrest” as opposed to “riots.” She was also criticized for pushing medical staff to donate part of their salaries to make up for salary reductions ordered by HHS for midwives.
Four physicians in her department threatened to quit if Gustilo was not removed as chair, saying they felt “bullied” and that she “frequently lectured them about her personal views.” A consulting firm was enlisted to review her record and reported that the comments from employees were “overwhelmingly negative.” They included allegations of being “chronically” late and highly critical of others. However, the report also mentioned her social media postings.
The Vice President referred to the record as “one of the worst on record.” Gustilo was put on involuntary leave, and HHS started removal proceedings, reportedly with the opposition of virtually all of the staff.
That is clearly a contested record, but that is precisely the role of a jury to find critical facts. The panel was concerned that Judge Nelson seemed to make these factual determinations against Dr. Gustilo. Generally, factual disputes should be read in favor of the non-moving party for dismissal or summary judgment. Moreover, Judge Nelson simply ignored the threshold legal test raised by Dr. Gustilo and found that there were no material facts in dispute.
The panel held:
“We conclude that ratification 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.”
There is still a long way to go before any jury decision is in her favor, but Dr. Gustilo may now have a chance to present her case at trial.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
Tremendous effort just to get back to the starting line.
The plaintiff deserves great respect for stamina and perseverance.
These are issues that have long bubbled under the surface and now are in need of some measured contemplation.
Under no circumstances should it be proper to generate a list of complaints and faults in someone who has said something that the hearer does not like, but this happens over and over again to disastrous results all around.
What this case highlights to me is the importance of federal judgeships. One of Trump’s colossal errors was not filling every federal and immigration court judgeship before he left office in 2020. THis in my opinion is one of several fatal errors he committed as he left office.
I don’t know if anyone has seen CFP today but video of a bunch of white prison guards beating a handcuffed black man to death has surfaced. Isn’t this amazingly opportunistic for creating civil unrest and rioting before the inauguration? Why, it’s almost like it’s choreographed! Before it’s over the guards will be in prison as they should be and the criminal prisoner will be hailed St George II. Meanwhile all of us will foot the tax funded payoffs.
The facts are a little murky. She is referred to as “a chair” but her precise position is not otherwise stated. Are they trying to remove her from her position as “a chair” or as a doctor in the system. There should be a lower standard for removing someone from a supervisory position than terminating her employment as a doctor. It is further odd that the consulting group came back with the statement that the comments of other employees was “overwhelmingly negative” but her removal was opposed by “virtually all of the staff”.
Ah so the Hospital Polit Bureau and High Judge Comrade Nelson were unable to send the good doctor Gustilo to the Cancel Gulag? What a shame that Federal law needs to actually follow the law. Perhaps High Judge Comrade Susan Richard Nelson missed her calling as a New York judge where the law does not matter and only the judge’s scatterbrained application and analysis is what is needed for a righteous conviction of those deemed INAPPROPRIATE IN THE MOMENT! Judge Nelson is perfect as an NY Scatterbrain Judge!!!
@ Professor Turley: An appellate panel rebuked U.S. District Judge Susan Richard Nelson for usurping the function of a jury
That would be the Democrat lawyer elected state judge in that state – subsequently appointed a federal judge by Democrat lawyer turned president, Barack Obama.
Another Democrat lawyer (and member of the Washington DC bar) Robert Hur, also usurped the function of a jury as Special Counsel chosen from the Biden’s own DoJ.
Hur said he would not refer his boss (and fellow Democrat lawyer), Joe Biden, for indictment and trial because he was declaring he knew no jury would find his boss and fellow Democrat lawyer guilty.
Previously another Democrat lawyer (and member of the Washington DC bar and Obama’s FBI Director), James Comey, usurped the office of the Attorney General.
Doing so by inserting himself by declaring that no reasonable federal prosecutor in America working for the Attorney General whose role he was usurping would indict and try Democrat presidential candidate and their fellow Democrat lawyer, Obama’s fellow Democrat lawyer and his Secretary of State, Hillary Clinton.
See a common thread of ‘Democrat lawyers’ playing central roles in so many of your columns, sir?
Your fellow Democrat lawyers are a massive, corrupt self-licking ice cream cone; a fetid metastasizing cancer of corruption on the American criminal justice system .
Perhaps more luck noticing that common thread when 2025 arrives in a few days Professor Turley?
Old Airborne Dog
“Screaming Lil Bow Wow,” what were your MOS, Awards, Campaign, and Theater, or is yours stolen valor “Tampon Tim” style?
Whining little Airsoft Gravy Seal Time Six Sniper from the Chairborne Gun Bunny Commando: what were the sex crimes involving the little boys among the base brats that were deferred by the JAG’s office in exchange for you doing a Hunter Biden resignation from the military to spare those in uniform the public embarrassment of a trial?
1. Every day with my posts followed by your “stolen valor” allegations – and not once a copy and paste from those posts for you to offer as evidence of that. Coincidence?
2. Does your probation officer know you’re violating your probation by using the internet to contact us here as well as those little boys you were told to stay away from?
There’s a reason a cowardly pedophile Airsoft Gun Bunny like you is terrified to attach a unique username to your posts.
It’s easy to use a unique username, just like this:
Old Airborne Dog
Answer the question, please.
Provide the military bona fides that prove you are not stealing valor.
Answer the question, please.
I don’t humor the whining begging of cowards who can only post Anonymously. Do the following:
1. Borrow a set of balls, a couple of inches of spine from your sister, and find six inches of guts to enable yourself to post with a username from this point on. “Anonymous” isn’t a username.
2. Tell us why anyone should answer questions from an Anonymous supposed Airsoft Gravy Seal Team Six Sniper who’s nothing but a pedophile on probation.
3. Copy and past this “stolen valor” you’re alleging from my posts today. Or yesterday. Or tomorrow’s posts when you pop up again.
These lame posts of yours are the reason your mother keeps giving you her hair dryer and the kitchen toaster for your bath toys each night.
Old Airborne Dog
Dear Mr. Turley, I am glad for the doctor. Any opposition towards BLM/ George Floyd riots was immediately classified as “Racist” back then. Networks called the riots “mostly peaceful” while large section of Minneapolis was burning. It is my hope that is case will be one of many to shine a light on those grifters at BLM and others who profited off of the death of Mr. Floyd. Hopefully those BLM grifters will scurry back into darkness where they belong.
I personally find little of the doctors conduct that bothers me.
But presuming that HHS is completely private, they should be free to make employment decisions as the please – bad decisions as well as good ones.
There is very little in the way of free speech rights in the workplace. Nor should their be.
However as Turley noted given the current state of the law – the judge erred.
All the above said if I was in minesota I would be reluctant to use HHS. I would favor practices that made employment decisions based on competence not speech.
HHS is not private Hennepin health is a public county hospital most of the violence of those nights ended up there. To target a doctor is reprehensible. The county board themselves should be sued.
You are what is wrong with the world. You are nothing more than fascist scum, and society would be better off if you didn’t exist.
* private property is more important…
“. . . HHS started removal proceedings, reportedly with the opposition of virtually all of the staff.” JT – it is unclear from this statement whether staff opposed removal or were in opposition to Gustilo being retained on staff – that is, supporting removal.
Thanks for including reference to employment issues apart from First Amendment. Getting rid of a highly disruptive employee can be very challenging. I also have to admit, having been on the defense side of a completely meritless suit, that summary judgment can be a good thing too. However, there is lots of slop in determining what fact is material, to be sure.
Minnesota, the “Land of 10,000 Lakes”.
Pick one and Go Jump in the Lake
Minnesota is a hot mess.
Susan Richard Nelson is an Obama judge. What do you expect from her? Rational application of the law?
LOL
good call
Susan Richard Nelson is an Obama judge.
And she, Obama, and Professor Turley all share one thing in common. All are Democrat lawyers.
There must be a reason that no notice is ever taken of that fact. Just not relevant?
Also not relevant that Merrick Garland, Jack Smith, James Comey, Andrew McCabe, Loretta Lynch, Sally Yates, Robert Mueller, etc are also Professor Turley’s fellow Democrat lawyers and members of the Washington DC Bar Association? Not of that is worth mention?
Old Airborne Dog
I have commented before that summary judgment motions are horribly misused, and have become obligatory in the sytem. They are also a lazy judge’s way of getting out of work. Hopefully, plaintiff’s lawyers will start filing Rule 11 Motions on some of this crap.
Beware Judges commandeering the powers of juries to be the deciders-of-fact. It happened in the Supreme Court decision on Presidential Immunity (John Roberts), who left it to pre-trial judges to decide if an alleged crime committed by the President is official act or personal. Then, the deciding Judge can suppress facts (like motive) from being heard by the Jury if deemed an official act.
It’s going on at every level in the Judicial system, as elites with law degrees are distrustful of average Americans ability to weigh complex evidence. This pattern needs to be reversed.
Physicians are learning that working for health systems is a ball and chain employment arrangement. We didn’t go into medicine to act like a monkey playing an accordion while tied to a chain so that our employer can hold the tin can with deposited monies by those we serve. It’s time to reclaim medical careers as belonging to physicians. Health systems are fraught with serving internal and external stakeholders who never see the patient.
Medicine, like Law, have been taken over by the leftists and we won’t get it back in my lifetime. You can add academia and journalism to the pile too.
I don’t know how old you are Hullbobby, but you are probably correct. I would add: “If ever”.
You are right-on with your comment. My doctor used to be in small group private practice but is now in a health care system for our local hospital. I now can never be sure whether she is telling me her professional opinion or singing from the company song book.
@Estovir: Health systems are fraught with serving internal and external stakeholders who never see the patient.
Estovir, I believe a physician who is a skilled writer could produce a year’s worth of analytical columns on just that one subject.
My former (and greatly lamented) GP (and flyfishing and powder skiing partner and friend) finally walked away from his practice after frustrating years under Obamacare, to relocate in Mexico where he pursues blue marlin offshore and return to Montana about this time each year for his powder skiing fix.
We had regular conversations during the dead time riding the chair lift to the top of the mountain as he talked about his frustration with practicing defensive medicine to meet the requirements of his acts and omissions insurer. Providing government cut rate health to Medicaid patients. Spending more time dealing with regulatory record keeping and submissions to government entities than with his patients. Feeling like he went to work to provide services to government bureaucrats rather than his patients.
Dave Lenz told me that doctors abandoning practicing medicine in their home country of America to relocate to foreign Mexico to resume their practice is sadly not a rare thing. He’s just become one more on that list after practicing medicine here for over 20 years. Meanwhile we have shortages of doctors here in Montana, his home state he left behind him.
A majority of Montana counties face primary care shortages
The gap in health care access is particularly acute in rural areas.
https://www.hcn.org/articles/the-montana-gap-a-majority-of-montana-counties-face-primary-care-shortages/
Old Airborne Dog
Obama appointee on Senior status. Perhaps the judiciary needs to take a closer look at who takes senior status. I know that the federal judiciary is overwhelmed,, but free speech is pretty basic stuff
Now the courts must untangle all of the lunatic virtue-signaling and hysteria that went on during the BLM/COVID heyday. The best the Leftists and the complicit cowards will be able to say to explain the nonsense will be “you had to be there”. Unfortunately for them, we were there.