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Vazquez v. Upson County Hospital Inc.

United States District Court, M.D. Georgia, Macon Division

October 22, 2019

SHIRLEY VAZQUEZ, Plaintiff,
v.
UPSON COUNTY HOSPITAL, INC. AND PAUL S. PENN, III, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          TILMAN E. SELF, III, JUDGE

         INTRODUCTION

         Plaintiff 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.[1] 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.

         FACTUAL BACKGROUND

         Defendant 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”)[2] 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].

         Plaintiff's 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 Depo., 6:2-15].
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[3] 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].

         Throughout 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 ¶ 24].[4] 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].

         Plaintiff 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 Depo., 39:24-40:22].

         “Plaintiff 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].

         On February 5th, 2018, [5] 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 ...


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