IN THE UNITED STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

CAMELLIA THERAPEUTIC FOSTER ) 

AGENCY, LLC REPRESENTED BY ) 

JOSEPH APPIAH, CHAIRMAN ) 

THERAPEUTIC FOSTER CHILDREN, ) 

FOSTER PARENTS AND STAFF ) 

 ) 

 Plaintiffs, ) 

 ) 

V. ) CASE NO. 2:06 CV 735-MHT 

 ) 

GOVERNOR BOB RILEY, DEPT OF ) 

HUMAN RESOURCES COMMISSIONER ) 

PAGE WALLEY, AND SUSAN WARD ) 

 ) 

 Defendants. ) 

MOTION TO DISMISS OR FOR SUMMARY JUDGMENT BY DEFENDANT 

ALABAMA DEPARTMENT OF HUMAN RESOURCES

COMES NOW Defendant Alabama Department of Human Resources (hereafter 

referred to as “DHR”), by and through its undersigned counsel, and move this Honorable 

Court to dismiss Plaintiff’s Amended Complaint or, in the alternative, to grant summary 

judgment to Defendant. Defendant incorporates by reference Evidentiary Materials In 

Support Of DHR Defendants’ Motion for Summary Judgment filed contemporaneously 

herewith. Defendant avers that there are no genuine issues of material fact and that 

Defendant is entitled to judgment as a matter of law. As grounds therefore, Defendant shows 

unto this Court as follows: 

I. CLAIMS MADE AGAINST DEFENDANT ALABAMA DHR ARE BARRED BY 

THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 

II. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION 

Case 2:06-cv-00735-MHT-CSC Document 35 Filed 05/29/2007 Page 1 of 30
III. PLAINTIFF HAS FAILED TO STATE A TITLE VI CAUSE OF ACTION 

IV. SUPPLENTAL JURISDICTION SHOULD NOT BE EXERCISED IN THIS

CASE BECAUSE NO STATE LAW CAUSE OF ACTION EXISTS 

V. EX PARTE YOUNG DECLARATORY RELIEF IS UNAVAILABLE BECAUSE

THE REQUIREMENT HAVE NOT BEEN MET 

VI. PLAINTIFF FAILS TO ALLEGE A PROCEDURAL DUE PROCESS CLAIM 

VII. PUNITIVE DAMAGES ARE NOT AVAILABLE AGAINST DHR 

VIII. PLAINTIFF CLAIMS FAIL ON MCDONNELL DOUGLAS ANALYSIS 

COMPLAINT

According to its Amended Complaint, Plaintiff, Camellia Therapeutic Foster Agency

(hereinafter “Camellia”) brings this action against the Defendant DHR alleging that the

agency engaged in racism/discrimination against Plaintiff in violation if its rights under Title 

VI of the Civil Rights Act by not awarding Camellia a contract as part of a DHR Request for 

Proposal for Therapeutic Foster Care. In February 2005, DHR issued a Request for Proposal 

asking vendors to propose offers for contracts to provide homes for DHR foster children who 

needed therapeutic care. Camellia alleges that it submitted a proposal, but that DHR 

discriminated against it by not awarding it a contract. Plaintiff alleges three counts: 1( race 

discrimination and procedural due process ( i.e. right to a right), 2) interference with an 

existing lawful business and, 3) interference with contract relations. Camellia seeks 

injunctive relief, punitive damages, and specified compensatory damages.

RULE 12(b)(6) AND RULE 56(c) STANDARDS

Under Rule 12(b)(6), FED.R.CIV.P., dismissal of the complaint for failure to state a 

cause of action is appropriate when no construction of the factual allegations of the complaint 

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will support the cause of action. Marshall County Board of Education v. Marshall County

Gas District, 992 F.2d 1171, 1174 (11th Cir. 1993). The Court may dismiss the complaint 

only if it is clear that no relief could be granted under any set of facts in support of its claims. 

Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986). It 

has been held that the consideration of “matters outside the pleading[s]” under Rule 12 

triggers the notice provision of Rule 56(c). McBride v. Sharpe, 25 F.3d 962, 968 (11th Cir. 

1994). Moreover, when a pro se litigant is involved, Rule 56(c) has been interpreted to 

require that the district court specially inform the litigant (1) of the need to file affidavits or

other responsive materials and (2) of the consequences of default. See United States v. One 

Colt Python .357 Cal. Revolver, 845 F.2d 287, 289 (11th Cir. 1988); Farred v. Hicks, 915 

F.2d 1530, 1534 (11th Cir. 1990). 

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 

proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” See Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for 

summary judgment “bears the initial burden to show the district court, by reference to 

materials on file, that there are no genuine issues of material fact that should be decided at

trial. Only when that burden has been met does the burden shift to the non-moving party to 

demonstrate that there is indeed a material issue of fact that precludes summary judgment.”

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). After a properly made 

motion has been properly responded to, the Court must grant summary judgment if there is

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no genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment against a 

party who fails to make a showing sufficient to establish the existence of an element essential 

to that party’s case and on which that party will bear the burden of proof at trial. Celotex, 

477 U.S. at 322. 

I. CLAIMS MADE AGAINST DEFENDANT ALABAMA DHR ARE BARRED 

BY THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY. 

The Eleventh Amendment to the Constitution of the United States provides that “[t]he 

judicial power of the United States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States by Citizens of another 

State, or by Citizens or subjects of Foreign State.” U.S. Const. Am. XI. The Amendment

also applies to suites in federal court against a state by its own citizens. See Hans v. 

Louisiana, 134 U.S. 1, 18-19, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The protection provided to 

states by the Eleventh Amendment has been extended to protect state entities, see Pennhurst 

State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 

(1984) (“suit in which the State or one of its agencies or departments is named as defendant 

is proscribed by the Eleventh Amendment...regardless of the relief sought”), and state

officials in their official capacities, see Kentucky v Graham, 473 U.S. 159, 166-167, 105 

S.Ct. 3099, 87 L.Ed.2d 114 (1985). Essentially, the Eleventh Amendment creates a 

sovereign immunity for suit in federal court which the states enjoy unless it has been

surrendered. See Idaho v Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 266-267, 117 S.Ct. 

2028, 138 L.Ed.2d 438 (1997) “[A]n assertion of Eleventh Amendment immunity must be 

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resolved before a court may address the merits of the underlying claims.” Seaborn v State of 

Florida, Department of Corrections, 143 F.3d 1405, 1407 (11th Cir. 1998). 

The Eleventh Amendment to the Constitution of the United States is a jurisdictional 

bar to a suit against an unconsenting state in federal court. Hans, supra; Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Generally, the 

Eleventh Amendment is a complete bar to lawsuits brought in federal court against a state or 

state agency by Individuals. Halderman, 465 U.S. at 98-100, 104 S.Ct. at 906-908 (Eleventh 

Amendment bar to suit against state and state agencies applies “regardless of the nature of 

the relief sought”). See Edelman v Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 

1356, 39 L.Ed.2d 662 (1974). Additionally, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 

3057, 57 L.Ed.2d 1114 (1978), the United States Supreme Court held that actions for 

injunctive relief against a state or its instrumentalilities were not an exception to the Eleventh

Amendment bar. 

Plaintiff seeks money damages, declaratory judgment, and injunctive relief against 

Defendant State of Alabama DHR. The federal courts have also held that he Eleventh 

Amendment prohibits actions for injunctive relief against state agencies by its citizens.

Wright v Butts, 953 F. Supp. 1352, 1358 (M.D. Ala. 1996) (Eleventh Amendment bars

injunctive relief against Department of Transportation); see also Stevens v Gay, 864 F.2d 113 

(11th Cir. 1989) (Eleventh Amendment bars injunctive relief against Board of Corrections); 

United States v State of Alabama, 791 F.2d 1450 (11th Cir. 1986) (Eleventh Amendment bars

injunctive relief against State Board of Education). 

To ascertain whether an entity is an arm of the state, the Court must examine state

law. Brown v East Central Health District, 752 F.2d 615, 617 (11th Cir. 1985). By statute, 

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the state and county Department of Human Resources have sovereign immunity. Ala. Code 

§ 38-2-8 (1975)’ Mitchell v Davis, 598 So.2d 801 (Ala. 1992) (“DHR and the JCDHR 

[Jefferson County DHR], as State agencies, can assert the defense of absolute immunity from 

suit.” (Parenthetical information added)); see also Ross v State of Alabama, 893 F. Supp. 

1545 (M.D. Ala. 1995) (holding that by statute the “Houston County DHR is a division of the

State Department of Human Resources and operates under its direction. Thus, the Court 

concludes that the Houston County DHR is a state agency for purposes of the Eleventh 

Amendment.”). Defendant State of Alabama DHR is therefore entitled to sovereign

immunity in this case dismissal from all action. 

Defendant Alabama DHR is absolutely immune from suit under State law for State 

claims raised by Plaintiff as well.. In Phillips v Thomas, 555 So.2d 81, 83 (Ala. 1989), the 

Alabama Supreme Court stated as follows: 

Article I, §14, Alabama Constitution of 1901, is the basis for 

sovereign immunity in this State, and that section provides that 

“the State of Alabama shall never be made a defendant in any

court of law or equity.” Under this provision, the State and its 

agencies have absolute immunity from suit in any court.

Barnes [v. Dale], 530 So.2d [770] at 781 [(Ala. 1978)];

Hickman v Dothan City Board of Education, 421 So.2d 1257, 

1258 (Ala. 1982); Gill [v. Sewell], 421 So.2d [1196] at 1198 

[(Ala. 1978)]; and Milton [v. Espey 356 So.2d [1201] at 1202 

[(Ala. 1978)]. 

(Parenthetical information added.) “The State’s immunity bars suits for relief by way of 

mandamus or injunction, no less than suits for any other remedy.” Taylor v Troy State 

University, 437 So.2d 472, 474 (Ala. 1983) (emphasis added). In Mitchell v Davis, 598 

So.2d 801, 806 (Ala. 1992), the Alabama Supreme Court held that “DHR [the Alabama State 

Department of Human Resources] and the JCDHR [Jefferson County Department of Human 

Resources], as State agencies, can assert the defense of absolute immunity from suite.” 

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(Parenthetical information and emphasis added.). In Camellia’s Deposition, Dr. Appiah 

stated that DHR is the only Defendant being sued: 

2 Q.>I understand what you are saying, but 

3. the document that your lawyer filed withdraws the 

4. original complaint and gives notice that the 

5. Amended Complaint is going to be filed. On the 

6. Amended Complaint, which is Exhibit 3, the only 

7. listed defendant is the Alabama Department of Human 

8. Resources; isn’t that correct? 

9. A.>I think so. 

10. Q.>There is your copy again. 

11. A.>I have one in my hand. The court has 

12. not dismissed – according to the court, the 

13. dismissal was removed. They threw out the 

14. complaint, so we can come back later. That is what 

15. my understand is. 

16. Q.>So look on Page 2 of that Amended 

17. Complaint, Parties. On Paragraph No. 7 it lists 

18. the defendant. Who is the defendant listed there?

19. Do you see Paragraph No. 7?

20. A.>Alabama Department of Human 

21. Resources. 

22. Q.>Is any other defendant listed?

23. A.>No. 

Camellia’s Deposition page 150, Exhibit 7 Evidentiary Materials in Support of Motion.

Since DHR is immune from suit, this case should be dismissed or summary judgment granted 

to Defendant DHR. 

II. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION 

Plaintiff has not alleged that Defendant DHR engaged in intentionally discrimination

based upon race in any of its claims. Plaintiff must allege that Defendants acted with the 

intent to discriminate against him. See, McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 

1756, 1767, 95 L.Ed.2d 262 (1987); E & T Realty v. Strickland, 830 F.2d 1107, 1112 and n.5 

(11th Cir. 1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988). It is 

insufficient for Plaintiff to merely put forth a personal belief that discriminatory intent was 

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present. See, Wilson v. Seiter, 893 F.2d 1336, 1990 WL 1125, at *3 (6th Cir. 1990). A

Plaintiff must allege facts establishing that the defendant intended to discriminate on the 

basis of race and that the discrimination concerned one or more of the activities enumerated 

in the statute. Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir. 2000). 

Plaintiff’s Amended Complaint seeks to raise only two federal claims against one 

Defendant, the Alabama Department of Human Resources (DHR). First, a Title VI race

discrimination claim. Second, a 14th Amendment procedural due process claim. In addition, 

Plaintiff seeks to raise two state claims against DHR. First an interference with lawful 

business claim. Second an interference with contract relations claim due process claim. All 

federal and state claims are without merit, as will be further determined in later section of

this motion. 

In C & J Associates Pest Control v. Hornsby, 2006 WL 3832819 (M.D. Ala. 

December 28, 2006), C & J was the unsuccessful bidder on State of Alabama contracts for 

termite treatment projects at the Alabama Department of Transportation (ADOT) and the 

Alabama Department of Corrections. C & J was wholly owned by Duncan, a black resident 

of Montgomery County, Alabama who had operated pest control services for twenty-five 

years. Among other things C & J argued that, state officials, discriminated against him based 

on race in violation of the 14th Amendment. The court granted summary judgment to 

Defendants holding as follows: 

Plaintiff has failed altogether to demonstrate against the ADOT 

defendants any racial discrimination claim violative of the 

Fourteenth Amendment and any valid state law claim premised

on Alabama bid laws or administrative procedures. 

C & J Associates Pest Control, 2006 WL 3832819 at page 9. In so holding, the court stated 

that establishing discriminatory intent requires more than just losing out on a contract bid. 

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“Evidence which merely indicated disparity of treatment or erroneous or even arbitrary 

administration of state powers, rather than against instances of purposeful or individual

discrimination, is insufficient to show discriminatory intent. McCleskey v. Kemp, 481 U.S. 

279, 292 (1987)” C & J Associates Pest Control, 2006 WL 3832819 at page 7. 

III. PLAINTIFF HAS FAILED TO STATE A TITLE VI CAUSE OF ACTION. 

Though Title VI is silent as to remedies, “[i]t is...beyond dispute that private 

individuals may sue to enforce” it. Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 

1511, 1516, 149 L.Ed.2d. 517 (2001) see also Bossier Parish Sch. Bd. v. Lemon, 370 F.2d 

847, 851 (5th Cir. 1967) (holding that Title VI provides an implied private right of action). 

The courts that have considered the question, however, have generally concluded that 

individuals may not be held liable for violations of Title VI because it prohibits

discrimination only by recipients of federal funding. The text of Title VI clearly suggests 

this: “No person in the United States shall, on the ground of race, color, or national origin, 

be excluded from participation in, be denied the benefits of, or be subjected to discrimination 

under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. 

The Supreme Court has concluded that “Congress limited the scope of § 504 [of the

Rehabilitation Act, a related nondiscrimination provision with language virtually identical to 

that of Title VI,] to those who actually ‘receive’ federal financial assistance,” United States 

Dep’t of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 605, 106 S.Ct. 2705, 2711, 

91 L.Ed.2d 494 (1986) and the statute “does not extend as far as those who benefit from it.” 

Id. at 607, 106 S.Ct. at 2712. 

 In Sandoval, the Supreme Court stated that “three aspects of Title VI must be taken as 

a given.” Sandoval, 532 U.S. at 279, 121 S.Ct. 1511. “First, private individuals may sue to 

enforce § 601 of Title VI and obtain both injunctive relief and damages.” Id. Second, “§ 601 

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prohibits only intentional discrimination.” Id. at 280, 121 S.Ct. 1511. Third, the Supreme

Court assumed that “regulations promulgated under § 602 of Title VI may validly proscribe 

activities that have a disparate impact on the racial groups, even though such activities are 

permissible under § 601.” Id. at 281, 121 S.Ct. 1511. The Supreme Court then examined 

§ 602 in great detail and stated that “Title VI [does not] display an intent to create a

freestanding private right of action to enforce regulations promulgated under § 602[; 

therefore, the Court held] that no such right of action exists.” Id. at 293, 121 S.Ct. 1511 

(parenthetical information in the original). 

The Supreme Court has made it clear that “the reach of Title VI’s protection extends 

no further than the Fourteenth Amendment.” United States v. Fordice, 505 U.S. 717. 732 

n. 7. 112 S.Ct. 2727, 2737, 120 L.Ed.2d 575 (1992) (citing Regents of Univ. of Cal. v. Bakke, 

438 U.S. 265, 287, 98 S.Ct. 2733 2746, 57 L.Ed.2d 750 (1978)). In order to state a claim

upon which relief can be granted under either § 601 of Title VI, a party must allege that he or

she was the target of purposeful, invidious discrimination. See Alexander v. Sandoval, 532 

U.S. 275, 285, 121 S.Ct. 1511, 1519, 149 L.Ed.2d 517 (2001) (rejecting any application of 

§ 601 of Title VI that extends beyond intentional discrimination); see also South Camden

Citizens in Action v. New Jersey Dep’t of Environmental Protection, 254 F.Supp.2d 486 

(D.N.J. 2003). Plaintiff has not alleged that Camellia was the target of purposeful invidious

discrimination. 

IV. SUPPLEMENTAL JURISDICTION SHOULD NOT BE EXERCISED IN THIS 

CASE BECAUSE NO STATE LAW CAUSE OF ACTION EXISTS. 

Counts II and III of the Amended Complaint seeks to allege Alabama statutory claims

for intentional interference with lawful business and contract relations. If this Court 

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dismisses all Plaintiff’s federal claims, it must inquire as to “whether a jurisdictional basis 

exists to support Plaintiff’s state law claims in federal court.” Baggett v. First National Bank 

of Gainsville, 117 F.3d 1342, 1352 (11th Cir. 1997). The appropriate court inquiry is as 

follows: 

First, the Court must decide whether it has the power to hear 

the state law claims. Second, if the Court does have the power 

to hear the state claims, the Court must decide whether, in its 

discretion, it will retain jurisdiction over the state claims. 

United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 

1130, 1138-1139, 16 L.Ed.2d 218 (1966). 

Baggett, 117 F.3d at 1352. 

Under 28 U.S.C. §1367(c), a court may dismiss any state law claims where the Court 

has dismissed all the claims over which it had original jurisdiction. Even where §1367(c) 

applies, the Court is permitted to apply considerations of judicial economy, convenience, 

fairness, and comity in deciding whether to exercise supplemental jurisdiction in its 

discretion. Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1569 (11th Cir. 

1994). However, where all federal claims are dismissed prior to trial, these considerations 

favor the Court’s declining to exercise federal jurisdiction over the state claims. See United 

Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 

(1966) (dismissal of state claims strongly encouraged where federal claims are dismissed 

prior to trial); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 

619 n.7, 98 L.Ed.2d 720 (1988) (“When federal law claims have dropped out of the lawsuit 

in its early stages and only state-law claims remain, the federal courts should decline the 

exercise of jurisdiction by dismissing the case without prejudice.”) 

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In any case, although Alabama does recognized a cause of action for interference with 

business or contract relations, Plaintiff fails to state causes of action for such claims. The 

elements of the causes of action are as follows: 

In Gross v. Lowder Realty Better Homes & Gardens, 494 

So.2d 590 (Ala. 1986), this court announced a new rule that 

was broad enough to encompass both interference with 

business relations and interference with contractual relations. 

The tort of intentional interference with business or contractual

relations requires: 

“(1) The existence of a contract or business relation; 

“(2) Defendant’s knowledge of the contract or business

relation;

“(3) Intentional interference by the defendant with the contract 

or business relation; 

“(4) Absence of justification for the defendant’s interference; 

and 

“(5) Damage to the plaintiff as a result of defendant’s 

interference.

Folmar & Associates LLP v. Holberg, 776 So.2d 112, 115 (Ala. 2000). 

Plaintiff does not state a claim stating it was attempting to get a contract for a new 

year. Furthermore, contracts were awarded under a Request for Proposal (RFP) scoring 

process constituting justification for Defendant’s decision not to award a contract to Plaintiff.

That mere expectancy of acquiring a contract is insufficient to state a claim. This is

supported by holding of the Alabama courts in related matters. “(T)he provision for letting 

the contract to the lowest responsible bidder is for the benefit of the public and does not 

confer on a bidder any right enforceable at law or in equity....” Tectonics, Inc. v. Castle 

Const. Co. Inc., 496 So.2d 704, 705-06 (Ala. 1986) (quoting Townsend v. McCall, 262 Ala. 

554, 558, 80 So.2d 262, 265 (1955) (emphasis added in Tectonics). An unsuccessful bidder 

may not sue for monetary damages, Jenkins, Weber & Associates v. Hewitt, 565 So.2d 616, 

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617 (Ala. 1990), or “recover bid preparation expenses.” Crest Const. Corp. v Shelby County

Bd of Educ., 612 So.2d 425, 431-32 Ala. 1992). More to the point, an unsuccessful bidder 

has no “right or expectancy to insist upon the award of a contract.” Jenkins, Weber &

Associates, 565 So.2d at 618 (quoting with approval Urban Sanitation Corp. v. City of Pell 

City, 662 F. Supp. 1041, 1044 (N.D. Ala. 1986) (emphasis added)). 

V. EX PARTE YOUNG DECLARATORY RELIEF IS UNAVAILABLE BECAUSE 

THE REQUIREMENTS HAVE NOT BEEN MET 

Defendant further avers that the Amended Complaint does not meet the requirements 

for an Ex parte Young claim. The Eleventh Circuit Court of Appeals has held that the

applicability of an Ex parte Young claim depends on three considerations: 

[F]irst, does the plaintiff seek prospective or retrospective 

relief; second, is the violation ongoing and continuous; and 

finally, would equitable relief “ ‘implicate special sovereignty

interests.’ ” Id. at 1337 (quoting Coeur d’Alene, 521 U.S. at 

281, 117 S.Ct. 2028). 

Sandoval v. Hagan, 197 F.3d 484, 500 (11th Cir. 1999). 

The Amended Complaint in this case demands only relief for past wrongs. 

“[C]ompensatory or deterrence interests are not sufficient to overcome the dictates of the 

Eleventh Amendment.” Papasan v. Allain, 478 U.S. 265, 277-278, 106 S.Ct. 2932, 92 

L.Ed.2d 209 (1986). Furthermore, the Amended Complaint in this case does not seek to 

address an “ongoing and continuing violation of federal law.” The Eleventh Circuit Court of 

Appeals has held: 

...The ongoing and continuous requirement merely 

distinguishes between cases where the relief sought is 

prospective in nature, i.e., designed to prevent injury that will 

occur in the future, and cases where relief is retrospective. 

Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326, 1338 (11th Cir. 1999). 

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...Young has been focused on cases in which a violation of 

federal law by a state official is ongoing as opposed to cases in 

which federal law has been violated at one time or over a 

period of time in the past. 

Papasan, 478 U.S. at 277-278. 

VI. PLAINTIFF FAILS TO ALLEGE A PROCEDURAL DUE PROCESS CLAIM 

To succeed on a procedural due process claim, a plaintiff must establish “(1) a 

constitutionally protected interest in life, liberty, or property; (2) governmental deprivation of 

that interest; and (3) the constitutional inadequacy of procedures accompanying the 

deprivation.” Bank of Jackson County v. Cherry, 980 F.2d 1354, 1357 (11th Cir. 1992); see 

also Zipperer v. City of Fort Myers, 41 F.3d 619, 623 (11th Cir. 1995). “Failure to establish 

any one of these elements is fatal to [the] due process claim.” Bank of Jackson County, 980 

F.2d at 1357. 

The Fourteenth Amendment to the United States Constitution provides that no state

shall “deprive any person of life, liberty, or property without due process of law....” U.S. 

CONST., Amend. 14, § 1. Property interests are not created by the Constitution but by

existing rules or understandings which stem from an independent source, such as state law, 

and arise only where the Plaintiff demonstrates a “legitimate claim of entitlement.” Board of 

Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 

(1972). State statutes, rules, regulations, and mutually explicit understandings can create 

property interests. See Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077-2078, 48 

L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699-2700, 33 

L.Ed.2d 570 (1972). Whether these sources create a property interest must be decided by 

reference to state law. Bishop, 426 U.S. at 344, 96 S.Ct. at 2077. 

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As has been mentioned earlier, the Alabama courts have already held that in the area 

of the award of public contracts absent a statute providing for it that there is no “right or 

expectancy to insist on the award of a contract.” Jenkins, Weber & Associates v. Hewitt, 565 

So.2d at 618, quoting with approval Urban Sanitation Corp. v. City of Pell City, 662 F. Supp. 

1041, 1044 (N.D. Ala. 1986). The Request for Proposal (RFP) process utilized by Defendant 

DHR for the award of multiple contracts is substantially similar to competitive bid process in

those case for the award of a single contract. Submitting a response to an RFP is substantially 

similar to submitting a bid in response to a competitive bid announcement. In both situations,

the vendor has no “right or expectancy” to the contract, no protected right under State law, 

and therefore no federally protected property interest guardable by procedural due process. 

Furthermore, despite not being awarded a contact, Camellia’s DHR issued license remains 

unaffected. 

1 to June 11, 2003; and I have a license from March 

2 19, 2003 to March 19, 2005: a license from March 

3 19, 2005 to March 19, 2007; and a license from 

4 March 19, 2007 to March 19, 2009; is that correct?

5 A.>Yes. 

6 Q.>So you are still currently licensed?

7 A.>Yes, sir. I called Susan Ward. I am 

8 fully licensed. So thank God I am fully licensed. 

Camellia’s Deposition page 100, Exhibit 7 Evidentiary Materials in Support of Motion. 

8 Q>It is your claim that you have 

9 Property rights that are protected by the 

10 Constitution?

11 A.>This was written by a lawyer. 

12 Q.>What rights are you talking about, 

13 what property interest rights are you talking 

14 about?

15 A.>I have a check with the attorneys on 

16 this one. 

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17 Q.>You have a license to operate under 

18 Alabama law; is that correct? 

19 A.>Yes. 

20 Q.>What is your license?

21 A.>Therapeutic Foster Care Agency 

22 License. 

23 Q.>You have a Therapeutic Foster Care 

1 License? 

2 A.>Yes, still have a license still. 

Camellia’s Deposition pages 139-140, Exhibit 7 Evidentiary Materials in Support of Motion. 

Furthermore, the third procedural due process requirement is “constitutionally

inadequate state procedures.” Bank of Jackson County v. Cherry, 980 F.2d at 1357. In 

McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc), the Eleventh Circuit Court 

of Appeals stated that “only when the state refuses to provide a process sufficient to remedy 

the procedural deprivation does a constitutional violation actionable under §1983 arise.” It is

the state’s failure to provide adequate procedures to remedy the otherwise procedurally 

flawed deprivation of a protected interest that gives rise to a federal procedural due process 

claim. See Id.; see also Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999); Harris v. 

Board of Education of the City of Atlanta, 105 F.3d 591, 596 (11th Cir. 1997). This rule (that 

a procedural due process claim is not stated unless inadequate state procedures exist to 

remedy an alleged procedural deprivation) recognizes that the state must have the 

opportunity to “remedy the procedural failings of its subdivisions and agencies in the 

appropriate for agencies, review boards, and state courts” before being subjected to a claim 

alleging a procedural due process violation. See McKinney, 20 F.3d at 1560; see also Horton 

v. Board of County Commissioners of Flagler County, 202 F.3d 1297, 1300 (11th Cir. 2000). 

If adequate state remedies were available but the plaintiff failed to take advantage of

them, the plaintiff cannot rely on that failure to claim that the state deprived him of 

16

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procedural due process. See McKinney, 20 F.3d at 1565. (“The fact that [McKinney] failed 

to avail himself of the full procedures provided by state law...does not constitute a sign of 

their inadequacy.”); Bell v. City of Demopolis, Ala., 86 F.3d 191, 192 (11th Cir. 1996); Narey 

v. Dean, 32 F.3d 1521, 1528 (11th Cir. 1994). To be adequate, the state procedure need not 

provide all the relief available. See McKinney, 20 F.3d at 1564. Instead, the state procedure 

must be able to correct whatever deficiencies exist and to provide plaintiff with whatever

process is due. See Cotton v. Jackson, 216 F.3d 1328, 1333 (11th Cir. 2000) (“[b]ecause we 

believe a writ of mandamus would be available under state law ... we conclude that Plaintiff 

has failed to show that inadequate state remedies were available.”) 

There are numerous state remedies available to Plaintiff in this case to address any

alleged procedural due process violations. In Phillips v. Thomas, 555 So.2d 81 (Ala. 1989), a

case involving an official capacity action against Alabama Department of Human Resources 

officials, the Alabama Supreme Court described declaratory judgment action, actions to 

compel a legal duty (i.e., by injunction or mandamus), actions to compel (i.e., by injunction 

or mandamus) performance of a ministerial act required by state law or agency rules, as well

as actions asserting that the failure to provide notice as the result of a mistaken interpretation 

of law as all valid and available actions against state officials under Alabama law. See also 

Ex parte Cranman, 792 So.2d 392 (Ala. 2000), explaining the state-agent immunity doctrine. 

Plaintiff is and has been represented by legal counsel and is therefore presumably fully aware 

of State law remedies but has not exhausted those remedies. Plaintiff has therefore failed to 

state a federal cause of action for 14th Amendment denial of procedural due process. The case 

should be dismissed or summary judgment granted to Defendant DHR. 

VII. PUNITIVE DAMAGES ARE NOT AVAILABLE AGAINST DHR 

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Punitive damages, are not available in suits brought under Title VI. Barnes v. 

Gorman, 536 U.S. 181, 189, 122 S.Ct. 2097, 153 L.Ed.2d. 230 (2002) (“Because punitive 

damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights

Act, it follows that they may not be awarded in suits brought under § 202 of the ADA and

§ 504 of the Rehabilitation Act” plaintiff claims fail on McDonnell Douglas analysis. 

Dr. Appiah testified as follows: 

4 Q.>And you received some letters back 

5 from DHR indicating that you were not going to be 

6 granted a hearing; isn’t that correct? 

7 A.>Yes, sir. 

8 Q.>That was all in 2005?

9 A.>Yes, sir. 

10 Q.>It is a fact that you did not appeal 

11 that denial to any Alabama court?

12 A.>No, I appealed to the Board. 

13 Q.>You appealed to the Board?

14 A.>Yes, DHR Board. 

15 Q.>But you didn’t appeal to the court?

16 A.>Well, Section 660 didn’t tell me I 

17 could appeal to the Board?

18 Q.>But you didn‘t file anything in 

19 circuit court, did you?

20 A.>No, not for this one. I didn’t file 

21 for an appeal. 

Camellia’s Deposition page 144. Having not taken advantage of state records available to 

them, Camellia has suffered no deprivations and has no remedy in federal court. 

VIII. PLAINTIFF CLAIMS FAIL ON McDONNELL DOUGLAS ANALYSIS 

Since they both require proof of intentional purposeful discrimination and no direct 

evidence has been proffered, Plaintiff’s disparate treatment race discrimination claims under 

Title VI and the Fourteenth Amendment are both subject to analysis under McDonnell 

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Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the context 

of claims of racial discrimination in awarding contracts, the analysis has been explained as 

follows: 

Under the familiar McDonnell Douglass/Burdine framework, 

the court employs a three part test designed to determine the 

motivation of the defendant in taking the challenged action. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 

1817, 36 L.Ed.2d 668 (1973); Texas Department of community 

Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 

(1981). 

The initial burden rests with the plaintiff to demonstrate by a

preponderance of the evidence a prima facie case of 

discrimination. Id. at 252-53, 101 S.Ct. at 1093-94. This 

burden is not onerous, id. at 253, 101 S.Ct. at 1094, and can be 

met by simply demonstrating that the plaintiff is a member of a 

minority group, that he submitted an application or bid which 

met the requirement for an available contract, that the 

application or bid was ultimately rejected, and that the contract 

was eventually given to an individual who is not a member of a 

protected class. Patterson v. McLean Credit Union, 491 U.S. 

at 187, 109 S.Ct. at 2378, 105 L.Ed.2d 164 at 157; Zaklama v. 

Mount Sinai Medical Center, 842 F.2d 291, 293 (11th Cir. 

1988). Thereafter the defendant must come forward with 

evidence demonstrating legitimate, nondiscriminatory reasons

for its conduct. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. It 

is important to note that the burden on the defendant is one of 

production not persuasion. Id. at 254-55, 101 S.Ct. at 1094-95; 

Eastland v. Tennessee Valley Authority, 704 F.2d 613, 618-19 

(11thCir. 1983). Once the defendant satisfied this obligation, it 

is incumbent on the plaintiff to produce evidence suggesting 

that those reasons are merely a pretext, the real reason for the 

action having been based on race. Burdine, 450 U.S. at 256, 

101 S.Ct. at 1095. 

Brown v. American Honda Motor Company, 939 F.2d 946, 958-959 (11thCir. 1991) 

(parenthesis information added). See also, Reshan International, Inc v. Kalamazoo, 

___ F.Supp. ___, 1997 WL 327117 at page 3 (W.D. Mich. May 5, 1997): 

In order to establish a prima facie case of race discrimination 

under the McDonnell Douglas/Burdine standard, Seyoum must 

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show that he is a minority contractor, he was qualified for the 

contract on which he bid, he was not awarded the contract, and 

another person was. See Mitchell, 964 F.2d at 584. See also, T 

& S Assocs., Inc. v. Crenson, 666 F.2d 722, 725 (1stCir. 1981) 

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 

93 S.Ct. 1817, 1824 (1973)); Polote Corp v. Metric

Constructors, Inc., 880 F.Supp. 836, 846 (S.D.Ga.1995) (also 

citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). 

If Seyoum can establish a prima facie case of discrimination, 

then Defendants must articulate a legitimate nondiscriminatory

reason for awarding the 1994 towing contract to McDonald’s 

Towing. See Mitchell, 964 F.2d at 584 (citing Burdine, 450 

U.S. at 252, 101 S.Ct. at 1093). If defendants can articulate a 

legitimate summary judgment, Seyoum must establish that the 

proffered reason was pretextual. Id.

However, cases involving the award of public contracts call for a modification of the 

prima facie case portion of the McDonald Douglas standard. This is because “(a) public bid 

offering, unlike the usual employment decision, typically finds the employer seeking only a 

single contractor out of a rather limited pool of companies which submit proposals.” T & S 

Service Associates, Inc. v. Crensen, 666 F.2d 722, 725 (1stCir. 1981). The modified prima

facie case formula can be summarized as follows: 

Accordingly, modifying the McDonnell Douglas guidelines to 

fit this situation, we believe that the present plaintiff, T & S, 

would prove its prima facie case by showing, by a 

preponderance of the evidence, that (i) T & S is a minorityowned firm; (ii) T & S ‘s bid met the specifications required of 

those competing for the contract; (iii) the T & S bid was 

significantly more advantageous to the Committee than the bid 

actually awarded, whether in terms of price or some other 

relevant factor; and (iv) the Committee selected another 

contractor. 

T & S Associates, Inc. v. Crenson, 666 F.2d at 725 (footnote omitted). 

In a May 16, 2005, Memorandum to Alabama Legislators, DHR Commissioner Page 

Walley described the process and objectives of the 2005 Therapeutic Foster Care (TFC) 

Request For Proposal (RFP) as follows: 

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I am writing to advise you of some changes with the way the 

Department contracts for therapeutic foster care (TFC). I know 

you are keenly interested in the service that foster parents 

provide to this agency and the value they contribute to the lives 

of children in the state’s care. 

Foster parents who provided TFC are for the most part licensed 

by private agencies and then we contract with the private 

agency to purchase TFC for our children who need TFC. 

These children exhibit emotional and behavioral problems

beyond those placed in our regular homes but are not in need of 

residential care. 

We issued the RFP for 1,210 children in need of TFC and were 

extremely pleased to received proposals to serve 3,680 children 

from over 22 providers. Having a surplus of qualified 

proposals extended our ability to have resources in regions

close to a child’s home and choices of providers. One group of 

child welfare experts scored the proposals. A different group 

of child welfare placement experts made the final selections.

We only considered proposals that received a score of 80% or 

higher on the criteria. 

The providers chosen by the selection committee are regionally 

distributed throughout the state. However, the selection 

outcomes have resulted in some current TFC providers not 

being awarded a contract or not being awarded a contract for 

the volume of services which they currently provide. You will 

likely hear form the TFC providers that have, in the past, had 

the vast majority of the business. We believe that having a

more diverse and larger number of providers is better for the

Department and the children. 

As a result of the RFP selections, we will have some children

who cannot continue to reside in their current setting because

the program was not selected. I want to assure you than any

move of a child that takes place will be orderly and involve an 

Individualized Service Plan, which is agreed upon by a group 

of stakeholders who have interest in planning for permanency 

for the child. Decisions will not be made hastily. The 

Department will follow all requirements of the R.C. Consent 

Decree in these cases. In some instances a child may no longer 

need TFC an will be “stepped-down” into the one of our 

regular foster homes or a permanent living environment. In 

other instances the TFC home may choose to move to another 

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agency that has openings as a result of the RFP. In that case

the child would remain in their foster home. 

Memorandum dated May 16, 2005 to Alabama Legislators from Page Walley, DHR 

Commissioner, Exhibit 1 Evidentiary Materials in Support of Motion. 

Attached to the May 16, 2005 Memorandum to Alabama Legislators is a Chart listing 

all the programs, i.e. vendors, who submitted responses to the Request For Proposal and the 

score given to each proposal. Exhibit 1 Evidentiary Materials in Support of Motion. The 

programs are listed, i.e. ranked, on the Chart according to the highest score given of the 22 

programs listed, 17 programs scored higher than 800 points (the lowest score qualifying for a 

contract) out of a total possible score of 1000 points. The chart further lists the allocation of 

1210 slots (i.e. placements for children) distributed to each of the 17 qualifying providers 

spread across nine (9) regions areas of the State. Counties included in each of the nine (9) 

regions are listed on pages 7-8 of the RFP for Therapeutic Foster Care issued by DHR. 

Exhibit 4, Evidentiary Materials in Support of Motion. 

After the initial award of slots, three (3) reallocations of slots became necessary and

were implemented by DHR to qualifying programs scoring over 800 points. Eagle Rock (8 

slots) (i.e. Sheriff’s Ranches), Child and Family Services (8 slots), and New Way Out (70 

slots) ran into licensing problems and had to have their cumulative 78 slots reallocated to

other qualifying providers scoring over 800. See Affidavit of Susan Ward, Exhibit 9, and 

Charts Exhibit 1 and Exhibit 10, Evidentiary Materials in Support of Motion. Secondly, 

several qualified programs scoring over 800 points who were awarded slots in particular 

regions were unable to locate sufficient foster homes in those regions to serve the children. 

See Affidavit of Susan Ward, Exhibit 9 and Charts Exhibit 10, Evidentiary Material in 

Support of Motion. Nine (9) programs notified DHR that they would be unable to serve 252 

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children. 226 of those 252 slots were reallocated to other qualified programs scoring over 

800 points, leaving 26 slots unfilled (one slot in region 5 and 25 slots in region 8). See Chart 

Exhibit 10, and Affidavit of Susan Ward, Exhibit 9, Evidentiary Materials in Support of

Motion. Finally in a third reallocation, an subsequent RFP was issued for region 8 slots, for 

which Plaintiff Camellia TFC did not submit a response. Affidavit of Susan Ward, Exhibit 9, 

Evidentiary Materials in Support of Motion. The final allocations are listed on a chart 

attached to Memorandum to County Directors dated December 28, 2006 entitled “Final 

Therapeutic Facts Care Allocations.” Exhibit 3, Evidentiary Materials in Support of Motion. 

Plaintiff Camellia is required under the McDonnell Douglass standard to establish a 

prima facie case. No acquiescence by Defendant is needed or given. In this regard, 

Camellia’s low “non-qualify score, prevents Plaintiff from establishing a prima facie case. 

In Allen v. Rumsfeld, 72 Fed. Appx. 497 (8th Cir. 2003), the court held that: 

Allen’s low scores on the skills narrative evaluation preclude 

her from establishing a prima facie case because they indicate 

that she was not as qualified as the fifty-six employees who 

were promoted. 

Allen v. Rumsfeld, 72 Fed. Appx. at 499 

In much the same way, Camellia cannot meet the “qualified” requirement for 

establishing a prima facie case. As the Eighth Circuit further pointed out, “the participation in

relevant activities was not race-specific and ... the individuals rating the skill narratives had 

no information regarding the race, color or national origin of the applicants.” Allen v. 

Rumsfeld, 72 Fed. Appx. at 499. The same is true in this case. 

Additionally, to establish a prima facie case it is necessary that Plaintiff establish by

clearly supported evidence that programs awarded a contract were “owned” by persons of 

another race. Presumptions, assumptions, and speculations are not enough. Plaintiff cannot 

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demonstrate the Commission’s unlawful motive through inadmissible hearsay, speculation, 

conjecture, assumptions of facts not in evidence, or speculative testimony of witnesses 

lacking personal knowledge. See Macuba v Deboer, 193 F.3d 1316, 1322-24 (11th Cir. 

1999); Daniels v Twin Oaks Nursing Home, 692 F.2d 132`1, 1326 (11th Cir. 1982). In 

Camellia’s Deposition, Dr. Appiah stated that the programs or agencies listed in the chart that 

submitted responses to the RFP and were awarded contracts were all white “owned” except 

one. See Camellia’s Deposition pps. 45-52, Exhibit 7, Evidentiary Materials in Support of 

Motion. According to Dr. Appiah, the only black “owned” program awarded a contract was

Seraaj Family Homes, owned by Abdul Seraaj. In a puzzling response, Dr. Appiah states 

that he includes among white “owned” programs those programs operated by large religious 

and governmental organizations: 

21 Q.>UMCH, which is United Methodist 

22 Church Homes, how do you know they are whiteowned?

23 A.>I am a pastor, I know. 

1 Q.>It is church-owned? 

2 A.>It is a white church, yes sir. 

3 Q.>Therapeutic Programs, Incorporated, 

4 that is TPI?

5 A.>That is Dr. William Mitchell. Yes, I 

6 was his foster parent. I know him personally, 

7 white man. 

8 Q.>LCYDC, Lee County Youth 

Development 

9 Center?

10 A.>It is white-owned. 

11 Q.>But that is an agency in Lee County, 

12 run by the County?

13 A.>Yes, it is organized by the white 

14 people. 

15 Q.>Alabama Mentor? 

16 A.>That is white-owned. 

17 Q.>Wilmer Hall?

18 A.>White-owned. 

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Case 2:06-cv-00735-MHT-CSC Document 35 Filed 05/29/2007 Page 24 of 30
19 Q.>It is a Catholic church?

20 A.>Episcopal – England. 

21 Q.>In Mobile?

22 A.>Yes. 

23 Q.>And you say that is white-owned?

1 A.>Yes. 

Camellia’s Deposition pps 53-55, Exhibit 7 Evidentiary Materials in Support of Motion. 

DHR had legitimate nondiscriminatory reasons for awarding contracts to other 

programs and not to Camellia based upon the higher RFP response scores of those programs. 

The RFP scoring process was manifestly legitimate and reasonable. Programs with a scoring 

average of 800 points or above out of a total possible score of 1000 points were awarded 

contracts. Exhibit 1, Memorandum to Alabama Legislators, Evidentiary Materials in Support 

of Motion. Camellia’s average score was 753 points out of a possible 1000 points and

therefore was not awarded a contract. Exhibit 1 Chart, Evidentiary Materials In Support of 

Motion. Black “owned” Seraaj Family Homes had a scoring average of 854.75 and after all 

the reallocations was ultimately awarded a total of 262 slots spread across all nine regions of 

the State. See Final Allocation Chart Exhibit 3, Evidentiary Materials in Support of Motion.. 

According to the Chart submitted to the Alabama Legislature, the size of the contract 

awarded to black “owned” Seraaj Family Homes (208 slots) represented at that time fully 

17.19% of all (1,210) slots awarded. This made Seraaj Family Homes the program which 

received the second highest number of slots under the RFP. Memorandum to Alabama

Legislators, Exhibit 1, Evidentiary Materials in Support of Motion. 

It is important to bear in mind that DHR’s burden of rebuttal is “exceedingly light.”

Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994). Defendant DHR need not persuade the 

court that it was actually motivated by the proffered reasons. Instead, “it is sufficient if the

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defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the 

plaintiff.” Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. The explanation provided must be 

legally sufficient to justify a judgment for the defendant. Id. At this stage of inquiry, the 

defendant need not persuade the court that it proffered reasons are legitimate; the defendant’s 

burden is “merely one of production, not proof.” Lee v. Russell County Board of Education, 

684 F.2d 769, 773 (11th Cir. 1982). The evidence presented by DHR meets its burden of 

production. 

Once the employer satisfies its burden of production, “ the presumption of 

discrimination is eliminated and ‘the plaintiff has the opportunity to come forward with 

evidence, including the previously produced evidence establishing a prima facie case,

sufficient to permit a reasonable fact finder to conclude that the reasons given ... were not 

the real reasons for the .... decision.’ “ Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th

Cir. 2000) (citations omitted). The establishment of a prima facie case does not in itself 

entitle a plaintiff to survive a motion for summary judgment. Grigsby v. Reynolds Metals 

Co., 821 F.2d 590, 595 (11th Cir. 1987). 

Testifying as the representative, owner, and CEO of Plaintiff Camellia TFC, Dr. 

Appiah essentially stated that, in his opinion, Camellia was more qualified and more 

experienced in this State than some of the programs that received contracts. Dr. Appiah

termed DHR’s RFP contract award process “unfair.” (Camellia’s Deposition page 71 line

10, Exhibit 7, Evidentiary Materials in Support of Motion), and “ridiculous” (Camellia’s 

Deposition page 70 line 21, Exhibit 7, Evidentiary Materials in Support of Motion). He 

complains that some programs were awarded contracts even though they were new to the 

State. Camellia’s Deposition pages 82 lines 16-23. 

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However, even Dr. Appiah admitted that the RFP criteria gave no weight to the 

operational experience of the program in this State. Camellia Deposition page 84 lines 6-23. 

In this regard, this Court should remember that in the Memorandum to members of the

Legislature, DHR Commissioner Page Walley stated that one of the objectives of the RFP 

was to expand both the number and geographical distribution of TFC homes and providers in 

the state., i.e. “(w)e believe that having a more diverse and larger number of providers is 

better for the Department and the children.” Memorandum to the Alabama Legislators dated 

May 16, 2005 page 1, Exhibit 1 Evidentiary Materials in Support of Motion. Since inclusion 

would have worked against this objective, it is not surprising that points were not available 

for operational experience within the State. Even so Dr. Appiah later admitted that most of 

the programs awarded contracts had more total experience than Camellia, which had three

years experience. Camellia’s Deposition pps 87-93, Exhibit 7, Evidentiary Materials in 

Support of Motion. 

Federal courts “do not sit as a super ... department that reexamines (DHR’s) business

decisions.” Damon v. Fleming Supermarkets, Inc., 195 F.3d 1354, 1361 (11th Cir. 1999) 

(parenthetical information added). “No matter how medieval a firm’s practices, no matter 

how high-handed its decisional process, no matter how mistaken the firm’s managers, (Title 

VI) does not interfere. Rather, (this court’s) inquiry is limited to whether ... (DHR) gave an 

honest explanation of its behavior.” Chapman v. AI Transport, 229 F.3d at 1030 

(parenthetical information added). “It is not the court’s role to second-guess the wisdom of 

(DHR’s) decisions as long as the decisions are not racially motivated.” Alexander v. Fulton 

County, 207 F.3d 1303, 1341 (11th Cir. 2000) (parenthetical information added). As long the 

reason is not discriminatory, (DHR may award TFC contracts) for a good reason, a bad 

27

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reason, a reason based on erroneous facts, or for no reason at all.” Nix v. WLCY 

Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (parenthetical 

information added). More specifically, “disparities in qualifications (e.g. operational 

experience within the State) are not enough in and of themselves to demonstrate intent unless 

those disparities are so apparent as virtually to jump off the page and slap you in the face.” 

Deines v. Texas Department of Protective and Regulatory Services, 164 F.3d 277, 280 (5th

Cir. 1999). See also, Chapman v. AI Transport, 229 F.3d at 1050 (Reasonable people may 

disagree about whether (DHR) acted correctly or fairly, “but such potential disagreement 

does not without more, create a basis to disbelieve (DHR’s) explanation that it in fact based 

its decision” on it’s asserted non-discriminatory reasons.”) (parenthetical information added). 

See also, Cofield v. Goldkist, Inc., 267 F.3d 1264, 1269 (11th Cir. 2001) (affirming summary 

judgment for employer and holding: “We will not second-guess (the employer’s) decision to

emphasize qualifications over length of service,” because the courts do not sit as superpersonnel departments that re-examine the entities’ business decisions.”). 

DHR states that the RFP process was intended to increase both the number and 

geographical disposition of service providers in the State. Exhibit 1, Evidentiary Materials in 

Support of Motion. DHR decided to use a scoring process for responses submitted to the 

RFP. Id. DHR decided to establish 1000 points as the maximum score and 800 points as the 

cut-off score qualifying for a contract. Id. Camellia was permitted to submit a response like

other programs and did so. The score for Camellia simply fell below the cut-off score. Id. 

There was no racial discrimination in the award of the contracts. In fact, a black “owned” 

program, Seraaj Family Homes, scored higher than the 800 point cut-off and was initially 

awarded 17.19% (208) of all awarded slots distributed across every region of the State. 

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Exhibit 1, Chart Attachment, Evidentiary Materials in Support of Motion. Later after 

reallocations, the slots awarded to Seraaj were increased to 269 slots. Exhibit 10 Chart, 

Evidentiary Materials in Support of Motion. The 262 slots awarded Seraaj is close to the 

“269” average number of slots awarded Seraaj in FY 2005. See Exhibit 1 Chart, Evidentiary 

Materials in Support of Motion. 

 RESPECTFULLY SUBMITTED,

 

 TROY KING (KIN047) 

ATTORNEY GENERAL 

 SHARON FICQUETTE (FIC001)

CHIEF LEGAL COUNSEL 

_s/ James E. Long_______________

James E. Long - LON016 

Deputy Attorney General 

State of Alabama 

Department of Human Resources 

P.O. Box 304000 

Montgomery, Alabama 36130-4000 

Phone: (334) 242-9330 

Fax: (334) 242-0689 

ATTORNEYS FOR DEFENDANT

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Case 2:06-cv-00735-MHT-CSC Document 35 Filed 05/29/2007 Page 29 of 30
CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing MOTION TO DISMISS FOR 

SUMMARY JUDGMENT BY DEFENDANT ALABAMA DEPARTMENT OF

HUMAN RESOURCES on the following by placing a copy thereof, addressed as indicated 

below, in United States Mail, First Class postage prepaid, on this the 29th day of May 2007. 

Hon. Kathryn Dickey 

Attorney at Law 

322 Alabama St. 

Montgomery, AL 36104 

Hon. Jamie Spears-Turk 

Attorney at Law 

2735 Office Park Cir. 

Montgomery, AL 36116 

_s/ James E. Long _____________ 

James E. Long – LON 016 

Deputy Attorney General 

State of Alabama 

Department of Human Resources 

P.O. Box 304000 

Montgomery, Alabama 36130-4000 

Phone: (334) 242-9330 

Fax: (334) 242-0689 

ATTORNEY FOR DEFENDANT ALABAMA 

DEPARTMENT OF HUMAN RESOURCES 

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