United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
E. SELF, III, JUDGE
Shirley Vazquez, a woman of Colombian descent, contends
Defendant Upson County Hospital, Inc. (“Upson”)
and Defendant Paul Penn (“Penn”) discriminated
against and subjected her to a racially hostile work
environment in violation of 42 U.S.C. §
1981. Additionally, Plaintiff asserts a claim
for retaliation in violation of the False Claims Act
(“FCA”). Before the Court is Defendants'
Motion for Summary Judgment [Doc. 26], which the Court
GRANTS for the following reasons.
Upson hired Plaintiff Shirley Vazquez on June 28, 2010, as
its Clinical Resources Director, a position sometimes
referred to as Case Management Director. [Doc. 31-1 at p. 1].
When Plaintiff was hired, she signed an acknowledgement that
she received Upson's employee handbook, which included
Upson's harassment and discrimination policies, and
policies for appealing management decisions that cause
employees to be dissatisfied with their employment. [Doc.
30-1 at ¶¶ 4, 5]. Until Defendant Penn became Chief
Executive Officer (“CEO”) in May 2016, Plaintiff
always reported to John Williams, Upson's Chief Financial
Officer (“CFO”). [Doc. 31-1 at p. 2]. Later,
Plaintiff was promoted to additional Directorships, including
the Quality team, Recovery Audit Contractor
(“RAC”) audit team, and the Pre-certification
Department. [Id. at p. 2; Doc. 30-1 at ¶ 2].
When Penn took over, he restructured the organization so that
Plaintiff reported to him. [Doc. 30-1 at ¶ 6; Doc. 31-1
at p. 4]. Prior to Penn's arrival at Upson, a company
that managed Upson told Penn that he should consider
replacing Plaintiff, due to a history of disruption. [Doc.
31-1 at p. 4].
hostile work environment claims arise out of the following
seven occurrences within a span of a little more than a year:
1) Prior to May 2016, Sally Barker told Plaintiff that
“Macon was a very Monday place. Upon inquiry, she told
Plaintiff that Monday was how they referred to African
Americans because nobody liked a Monday.” [Doc. 31-1 at
pp. 5-6]. Penn became aware of this by an anonymous letter he
received after Plaintiff was terminated. [Doc. 37-1, Penn
2) Additionally, sometime in November 2016, Penn had a
two-hour conversation with Plaintiff over dinner. [Doc. 37,
Penn. Depo., 67:4-68:22]. Plaintiff opened up concerning her
family and past, including stories about her Colombian
heritage, mother, and family. [Id. at 67:6-12,
68:3-9; Doc. 30-3 at ¶ 42]; [Doc. 29, Vazquez Depo.,
146:19-21]. In response, Penn shared about his brother who he
believes is a very unique individual, including that his
brother was married to a Jamaican woman at one point. [Doc.
37, Penn Depo., 67:6-20]. Penn alleged he opened up because
they were connecting for the first time, but Plaintiff stated
that this conversation served to underscore her racial
differences rather than help her feel included. [Id.
at 68:3-9; Doc. 30-3 at ¶ 44].
3) In December 2016, Penn took the administrative team to a
Mexican restaurant. [Doc. 37, Penn Depo., 70:20-22]. While at
the restaurant, Suzanne Streetman asked Plaintiff
“[W]hat's in a Mexican sandwich?” [Doc. 29,
Vazquez Depo., 138:8-23]. Before Plaintiff could respond,
“Sally [Barker] interrupted and said it was two
Mexicans and a woman.” [Id. at 139:9-15].
4) On another day, upon DACA's expiration, Sally Barker
asked Plaintiff if she was packing her bag. [Doc. 37, Penn
Depo., 73:1-3]. Penn witnessed the comment, but he did
nothing aside from considering the comment an inappropriate
joke or banter between two friends. [Id. at 73:3-8].
5) Sally Barker made a comment in an administrative meeting
that the “new mandatory flu cards were yellow”
rather than green, and Plaintiff “should tell the
infection control guy how angry I was because he took away my
‘green card.'” [Doc. 30-3 at ¶50]. Penn
testified that he did not remember that comment. [Doc. 37,
Penn Depo., 73:9-16].
6) Around September 2017, Plaintiff stopped reporting to Penn
and began reporting to Julie Long (“Long”), Chief
Nursing Officer. [Doc. 30-1 at ¶ 6; Doc. 31-1 at p. 7].
Shortly after Plaintiff began reporting to Long, Long had a
conversation with Plaintiff about Plaintiff's family and
heritage, similar to the conversation Penn had with her.
[Doc. 29, Vazquez Depo., 88:21-23]. In this conversation,
Long immediately asked what race Plaintiff was, told her that
she had gone to a Catholic church, told Plaintiff that her
son's spiritual advisor was a Mexican woman named Lupita,
and showed Plaintiff a picture of Lupita. [Id. at
89:1-9]. Plaintiff testified that this “led [her] to
believe that she was also looking at [her]
differently.” [Id. at 89:24-90:2].
7) In November 2017, Plaintiff stated in her affidavit that
Long, when speaking about problems the staff in the OB-GYN
office were having, said “[i]t's just a black and
white thing, Dr. Baker (a black doctor) makes everything
about race.” [Doc. 30-3 at ¶ 70].
Plaintiff's tenure, she never reported any instances of
racial discrimination or harassment to the HR director, Rich
Williams, who she was friends with. [Doc. 30-1 at ¶
Rich Williams testified that Plaintiff would have felt
comfortable discussing workplace issues with him and had done
so on other occasions. [Doc. 26-15 at ¶¶ 7-9].
Additionally, Plaintiff never complained to Penn about any of
the comments or jokes. [Doc. 30-1 at ¶ 28]. When asked
whether “[it's] ok to make comments regarding
someone's race or ethnicity off the clock, but not on the
clock[, ]” Plaintiff responded “[w]ith [her]
friends, [she] is okay with certain words and terms.”
[Doc. 29, Vazquez Depo., 148:8-12]. Plaintiff testified that
she and Sally Barker were friends, at least at work.
[Id. at 143:16-21].
expressed concerns to Dr. Brandon Boyce (“Boyce”)
that Dr. Ben Williams had patients that were being kept
longer than medically necessary. [Doc. 36, Brandon Boyce
Depo., 17:1-18:3]. Plaintiff opined that a peer review was
necessary regarding three of Dr. Williams' patients'
charts, and Boyce agreed. [Id. at 19:1-4, 23:14-20].
Following this, Boyce and Suzanne Streetman made the decision
to request an internal peer review from Dr. Frederique.
[Id. at 24:22-25:10]. Penn testified he was made
aware of Dr. Williams' behavior by Plaintiff and Suzanne
Streetman through the proper channels. [Doc. 37-1, Penn
reported concerns with billing practices as part of [her] job
and had never been reprimanded or treated differently because
of prior complaints.” [Doc. 30-1 at ¶ 50].
However, referring to the situation involving Dr. Williams,
“this was [Plaintiff's] first time asking for an
outside agency to review the material” and also the
“first time [Plaintiff] had ever taken it to the point
that it was going out to a peer review.” [Doc. 29,
Vazquez Depo., 99:2-11].
February 5th, 2018,  Plaintiff was terminated by Upson. [Doc.
26-12]. Defendants' brief alleges that Plaintiff
“was terminated months after the discussion regarding
the peer review occurred.” [Doc. 31 at p. 9]. However,
the contents of a party's brief are not evidence. In
contrast, deposition testimony and the items listed in Rule
56(c)(1)(A) are considered evidence. Plaintiff testified that
“two weeks [following Plaintiff raising the issues with
Dr. Williams], [Plaintiff] was terminated[.]” [Doc. 97,
Vazquez Depo., 96:17-19]. “The articulated reason for
firing Plaintiff was that she was perceived not to be
supportive of leadership, that she rolled her eyes at ...