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.”