Labor & Employment Law Daily Wrap Up, DISCRIMINATION—D. Minn.: Filipina doctor’s demotion over political Facebook posts invoked First Amendment, but not discriminatory, (May 22, 2025)

By Marjorie Johnson, J.D.

She claimed that she was punished for refusing to subscribe to the ideology expected of her “as a person of color” by criticizing support for George Floyd and CRT and calling COVID-19 the “China virus.”

On remand from the Eighth Circuit’s reversal of summary judgement against First Amendment claims brought by a physician who was removed from her position as department chair of a Minnesota public health system following controversial Facebook posts opposing the critical race theory (CRT) and referring to COVID-19 as the “China virus,” among other things, a federal district court examined the record in light of new evidence and concluded that triable issues existed as to whether under the Pickering analysis, the disruption to the employer’s health systems’ operations outweighed her protected speech. However, the court declined to revive her Title VII and state law claims of race discrimination and retaliation (Gustilo v. Hennepin Healthcare System, Inc., No. 22-cv-00352-SRN-DJF (D. Minn. May 15, 2025)).

Health equity prioritized. The doctor began working for the Hennepin Healthcare System (HHS), a subsidiary of Hennepin County, in 2008 and became interim chair of the OBGYN department in 2015 and permanent chair in 2019. HHS’s facilities serve a large number of indigent patients and historically underserved neighborhood, and in 2020 its board declared that health equity was a strategic priority for HHS.

Facebook posts. Also in 2020, the physician began posting controversial political material on her personal Facebook page, as well as commenting on the posts of others, including posts on presidential candidates, fascism, racism, police killings, Black Lives Matter, and COVID. In one posting, she appeared to suggest she approved of the use of the phrase “China virus” to refer to COVID-19. Although the HHS officials attempted to talk to her, she claimed she was unfairly considered a racist because of her different perspective on racial justice issues.

Negative effect. That September, four physicians approached the employer’s VP to discuss the concerns they had about the physician and claimed their division was “imploding” under her leadership and that she 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. Members were also concerned that her Facebook posts would reflect negatively on the department.

Around November 2020, HHS hired an outside company to perform an interview survey of the department’s staff. In early January, the company’s report detailed broad dissatisfaction with the physician’s leadership, including her daily behavior regarding issues of racial and social justice.

Suspension and demotion. After the VP and chief medical officer (CMO) discussed the results with the physician and suggested a PIP or removal from her position, she claimed the investigation was an excuse to “cancel [her]” and she was being asked to step down due to her political beliefs. She was then suspended and ultimately demoted based on a vote by members of the HHS medical executive committee, which was adopted by the HHS board. She sued, alleging First Amendment retaliation and Title VII and state law race discrimination and retaliation.

Summary judgment. In its first opinion, the district court dismissed all her claims on summary judgment. First, she failed to advance her race discrimination claims since, although she claimed she was demoted because she did not hold the political opinions expected of her as a woman of color, there was no evidence HHS “had any expectation or requirement that persons of color in particular hold any set of beliefs.” Her retaliation claims also failed since her actions in speaking out against “CRT indoctrination” were not protected employment activity. Finally, her First Amendment claim failed for lack of evidence the decisionmakers considered her various Facebook posts regarding her political beliefs.

Reversed in part on appeal. The Eighth Circuit reversed as to her First Amendment claim, finding that a triable issue existed as to whether HHS’s board considered the physician’s Facebook posts when it made the decision to demote her. On remand, the lower court was instructed to consider whether the Facebook posts should be considered protected speech and, perhaps, the development of a full record if the issues at hand require a full trial.

Protected speech. Because the Eighth Circuit held that the physician’s Facebook posts were matters of public concern, the district court examined whether HHS presented sufficient evidence that the speech caused a disruption to its operations. Concluding that it had met its burden, the district court noted that by the time its board intervened, there had already been a “fracturing” in the department, with a quarter to a third of the physicians considering leaving the organization due at least in part to her Facebook posts, with some reporting that they were not comfortable having their performance reviews done by her.

Pickering analysis. Next, the court examined the Pickering factors to balance the parties’ competing interests and determined that because several triable issues existed, a trial of the First Amendment claim was warranted. Starting with the first two factors—need for harmony and close working relationships—the court found it “implausible that doctors in a department that delivers babies do not need a close and harmonious relationship,” but believed a jury should weigh the issue. And while a reasonable jury could find that the manner of the posts was “quite public and disruptive,” the physician eventually set her Facebook to private and most of her posts received minimal reactions.

Looking at the context of speech, the physician’s posts could be seen as purely academic but also as intertwined with her personal grievances with HHS’s priorities as “an urban safety-net healthcare system.” And while there was arguably minimal public interest in her speech, it was also undisputed that her posts related to issues being hotly debated across the nation in 2020. Finally, a jury would weigh whether her posts interfered with her ability to perform her duties.

No race discrimination. The physician also alleged that her demotion was punishment for her “internalized whiteness” when “she refused to subscribe to the ideology expected of her as a person of color.” She further argued that a newly discovered video of the board meeting demonstrated that she was discriminated against “for the stereotype she failed to uphold” based on statements that HHS was concerned about her beliefs threatening the “psychological safety for people of color.” In particular, she argued that she was treated worse than a white person with the same views would have been. But even if this theory formed a legally cognizable claim, she “does not identify a single instance where a white person shared disfavored views and HHS shrugged its shoulders,” stated the court.

The court also rejected her argument that discrimination could be inferred because she was treated differently than her white successor, who was allowed to discuss political views that conformed with most of HHS leadership. The successor was “an inapposite comparator in the race-discrimination context” since she undisputedly held different views than the physician. Had she held similar views and made them known in a similar manner, a reasonable jury might be able to infer that race made the difference. As the court previously observed, treating employees who ascribe to “CRT” more favorably than those who do not is “an issue of discrimination based on political belief,” not race.

No Title VII retaliation. The court also declined to reinstate her retaliation claims under Title VII and the Minnesota Human Rights Act, finding once again that she did not engage in activity protected by the anti-discrimination statutes. Though she pointed to her opposition to the broader implementation of CRT, she did not identify any employment practice that she opposed. An even if she had engaged in protected activity, she could not demonstrate a causal connection. The VP’s generalized comments to the board about her bringing her “specific opinions about racial equity issues, and very particularly about . . . the George Floyd murder,” into the workplace were only constituted evidence that the Board knew she had “certain general political beliefs and priorities having nothing to do with her employment.”

The case is No. 22-cv-00352-SRN-DJF.

Judge: Nelson, S.

Attorneys: Aaron Mark Bostrom (Eckland & Blando LLP) for Tara Gustilo. Katlyn Lynch, Hennepin County Attorney’s Office, for Hennepin Healthcare System, Inc.

Companies: Hennepin Healthcare System, Inc.

Cases: Discrimination RaceDiscrimination IndividualRights Retaliation PublicEmployees StateLawClaims ArkansasNews