Legal effort targets Minnesota government promotion of critical race theory, Black Lives Matter

Racial minorities faced discrimination for opposing their public employers' promotion of "race essentialism," complaints say.

Updated: July 30, 2021 - 1:37pm

Minnesota government entities retaliated against Filipina and Native American employees for their opposition to workplace policies and practices influenced by critical race theory (CRT), according to federal discrimination complaints organized by a public interest law firm.

The Upper Midwest Law Center (UMLC) also plans to sue a school district for First Amendment violations and a hostile learning environment by promoting Black Lives Matter while refusing to allow slogans perceived to challenge it, according to a draft lawsuit.

The U.S. Equal Employment Opportunity Commission (EEOC) complaints by physician Tara Gustilo and father and son hospital workers Joseph and Aaron Norgren were filed a month ago but only disclosed this week. UMLC held a press conference Monday at the Capitol to announce the effort, the Pioneer Press reported.

The planned lawsuit alleges Independent School District 194 has formally banned teachers from displaying Black Lives Matter posters in classrooms since September. Yet it approved an "Inclusive Poster Series" this April that includes two BLM posters, which say the district "stand[s] with the social justice movement" represented by the slogan.

When plaintiff Bob Cajune, a Native American and taxpayer, asked if teachers and students could post All Lives Matter and Blue Lives Matter signs, equity coordinator Lydia Lindsoe said those were banned because the messages were "created specifically in opposition" to BLM. She added that "many staff and families" requested BLM posters.

Not only is that "favored private speech" in violation of viewpoint-neutral rules in a designated public forum, but the phrasing on the district's posters conveys support for the avowedly Marxist BLM organization and its "separatist, supremacist, and racist ideology," the brief says.

It also creates a hostile environment for plaintiff Kalynn Wendt's minor daughter N.W. and other students "because it promotes racism and racial inequality, instead of unity and equality."

The district didn't immediately respond to a request for comment when provided the draft lawsuit.

More lawsuits are coming, UMLC President Doug Seaton told Just the News, characterizing the EEOC complaints as the "required first step" for litigation. He expects to file the school district litigation "in a week or so" because clients are still reviewing it and more plaintiffs may join.

All three EEOC complaints share identical passages about CRT as a "race essentialist ideology that presupposes zero sum racial conflict" and cite the same literature by CRT theorists, including Ibram Kendi and Robin DiAngelo.

The Norgrens and Gustilo came to see CRT not as "a continuation of the civil rights movement but rather a repudiation of it," after taking account of their own experiences "as a person of color in America."

Minneapolis-based Hennepin Healthcare System removed Gustilo as chair of its obstetrics-gynecology department after she disagreed with its "segregated care based on race" and expressed similar criticisms of CRT on Facebook, according to her complaint. 

Her removal constituted race-based discrimination because of Gustilo's Filipina descent and refusal to embrace the "race essentialism" expected of a racial minority in the wake of George Floyd's death, which sparked rioting and looting in Minneapolis. The complaint says her three children are "considered black by society."

A superior repeatedly threatened to demote Gustilo without basis despite her high marks in running the department "for several years without any formal concern or complaint brought to my attention regarding my leadership abilities," she wrote. Executives and human resources also cited her Facebook posts as undermining her "ability to lead."

Gustilo did not respond to a Facebook query or email to her account at the University of Minnesota, which identifies her as OBGYN faculty but is not mentioned on her LinkedIn page. Her complaint cryptically refers to discrimination and retaliation she faced that "fall outside the jurisdiction of the EEOC" — claims she'll pursue in another venue.

Hennepin Healthcare told Just the News it had not received the complaint, which is dated June 25 and marked "hand delivered," and it does not comment on pending litigation.

The Foundation Against Intolerance and Racism (FAIR) separately announced Gustilo's complaint Tuesday. It said she's represented by an attorney in its network, Daniel Cragg, and it's raising money for her case. 

Neither group mentioned the other in its announcement. Cragg's firm is a "volunteer with UMLC ... and FAIR is assisting us," Seaton told Just the News. "That's it." (UMLC's version of her complaint is missing the cover page, which identifies Cragg.)

In separate but related complaints, the Norgrens allege Minnesota Security Hospital, a psychiatric facility, discriminated and retaliated against them as both Native Americans and Christians.

Joseph, the father, said he was "constructively discharged" January 6 due to a hostile work environment that led him to retire several years earlier than planned, forfeiting a larger pension. 

Last summer his supervisor ordered him to complete an antiracist training centered on Kendi's work, which said Joseph was not allowed to deny being racist, he must accept the United States as "the source" of his racist ideas, and his resistance is due to "internalized whiteness."

The father "generally" opposed that training but was specifically denied a religious exemption from the hospital's "Beyond the Binary" training, which said he wasn't allowed to dispute anyone's claimed gender identity. 

Two years earlier, his supervisor asked him "how many genders existed" and told Joseph he "could be fired for the way I think or talk" because he answered two. "From there on," both Joseph and his son were treated differently at the hospital.

Aaron Norgren made the same claims about the two trainings, including the denied religious exemption, and attributed "the discrimination I still frequently face" to the impromptu conversation between his father and supervisor about gender identity. He mentioned one tangible incident of retaliation: being denied the day off for bad weather, "a practice not normally even questioned."

The Department of Human Services, the target of their complaints, "is committed to a culture of equity that advances equitable outcomes for communities across Minnesota," and it provides employees "tools and skills" to do this, according to a statement provided by spokesperson Katie Bauer.

It doesn't comment on EEOC complaints but takes them "seriously and reviews the circumstances surrounding complaints carefully to ensure it is compliant with laws and regulations."

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