IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

CAMELLIA THERAPEUTIC )

FOSTER AGENCY, LLC, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:06cv735-MHT

) (WO) 

THE ALABAMA DEPARTMENT )

OF HUMAN RESOURCES, )

)

Defendant. )

OPINION

Plaintiff Camellia Therapeutic Foster Care Agency,

LLC, a private agency, brings this lawsuit against

defendant Alabama Department of Human Resources pursuant

to Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000d et seq., for racial discrimination in the

awarding of foster-care contracts to private agencies.

Camellia also asserts a violation of its right to

procedural due process under the Fourteenth Amendment as

well as state claims of interference with an existing

lawful business and interference with contractual

relations. Jurisdiction over Camellia’s federal claims

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1. The department actually filed a motion to dismiss

and an alternative motion for summary judgment. Because

the parties have submitted materials outside the

pleadings and the court has considered such materials,

the court is considering only the department’s motion

for summary judgment. See Concordia v. Bendekovic, 693

F.2d 1073, 1075 (11th Cir. 1982); Kachler v. Taylor, 849

F.Supp. 1503, 1507 n. 3 (M.D. Ala. 1994) (Thompson, J.).

The dismissal motion will be denied as moot.

2

is proper under 28 U.S.C. § 1331 (federal question) and

28 U.S.C. § 1343 (civil rights); jurisdiction over its

state claims is proper under 28 U.S.C. § 1367

(supplemental jurisdiction). 

This case is currently before the court on the

department’s motion for summary judgment.1

 Summary

judgment will be entered in favor of the department and

against Camellia.

I. SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “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

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that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Under Rule 56,

the party seeking summary judgment must first inform the

court of the basis for the motion, at which point the

burden then shifts to the non-moving party to demonstrate

why summary judgment would not be proper. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986); see also

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17

(11th Cir. 1993) (discussing burden-shifting under Rule

56). The non-moving party must affirmatively set forth

specific facts showing a genuine issue for trial and may

not rest upon the mere allegations or denials in the

pleadings. Fed. R. Civ. P. 56(e).

The court’s role at the summary-judgment stage is not

to weigh the evidence or to determine the truth of the

matter, but rather to determine only whether a genuine

issue exists for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). In doing so, the court must

view the evidence in the light most favorable to the nonCase 2:06-cv-00735-MHT-CSC Document 48 Filed 11/05/2007 Page 3 of 24
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moving party and draw all reasonable inferences in favor

of that party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

II. FACTUAL BACKGROUND

Camellia began accepting foster children in 2002.

Joseph Appiah, who is of African descent and who is the

private agency’s chair and chief executive officer,

recruited and trained foster-care parents and confirmed

that all foster parents were licensed. 

In May 2004, the Human Resources Department’s

Resource Development Director asked Appiah to attend a

meeting in his office. The director advised Appiah that

his private agency was growing too fast and that he was

concerned that not all of Camellia’s parents were

licensed; the director also informed Appiah that foster

parents were coming to Camellia because it paid more

money than the State required. Appiah denied the two

allegations. 

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Between May and June 2004, 30 children were removed

from foster homes under the supervision of Camellia. In

July 2004, Appiah received a letter from the Commissioner

of the Department of Human Resources, stating that there

were foster parents within his private agency that had

not been cleared by the Federal Bureau of Investigation

(FBI) or the Alabama Bureau of Investigation (ABI).

Appiah denied this allegation and submitted copies of all

documentation proving that his foster parents had been

cleared by the FBI and ABI and approved by the

department.

In August 2004, the department sent staff to

Camellia’s offices to audit its records. After a

thorough check of all the records, the department

determined that Camellia was in full compliance with all

requirements. Nonetheless, the department continued to

conduct numerous spontaneous audits and took over the

responsibility of completing intake evaluations on all

children entering Camellia. 

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In February 2005, the department issued requests for

proposals (RFPs) to Camellia and other private fostercare agencies. An RFP is an invitation for qualified

vendors to submit a response or to offer their services

to the state based on the requirements of the document.

Appiah submitted a response in a timely manner on behalf

of Camellia. 

Five evaluators individually scored at least 13 RFPs

over a two-day period. The scores were averaged for a

final score that was then given to each private agency

that had submitted a proposal. An agency whose proposal

scored below 800 would not be awarded a contract. 

Camellia scored 753.3 and did not receive any

contracts from the department. The scores Camellia

received from the five evaluators varied widely: 932.5,

887.5, 769, 682.5, and 495. The lowest score, 495, was

given by Joyce Wilson.

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2. Camellia asserts, on the basis of Appiah’s

understanding without any additional evidence, that the

Department of Human Resources did not want to award a

contract to Seeraj, but did so after members of the

“NAACP/Black Caucus” intervened. See Brief in Opposition

to the Summary Judgment Motion at 13 (doc. no. 40). 

3. Notice of Information Requested at Pretrial

Conference (Doc. No. 46). 

7

Seeraj, the only other African-American owned agency

to submit an RFP proposal,2

 received a final score of

854.5 and was awarded contracts from the department.3

In 2006, Appiah submitted two additional RFP

proposals to the department, and Camellia was again

denied contracts because of its low score. Specifically,

Appiah responded to an RFP for Foster Care Recruitment

Services in Mobile and Jefferson Counties. Camellia

alleges that it was the only private agency that had the

facility and staff in these counties to offer foster-care

and therapeutic services. Nonetheless, the department

offered one of the contracts to another agency that

allegedly had no staff to perform the services, and it

cancelled the second contract offer. As a result of the

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contract denials, Camellia was forced to close all but

one of its offices and alleges that it has suffered

financially.

III. DISCUSSION

A. Eleventh Amendment Sovereign Immunity

The Alabama Department of Human Resources contends

that the claim against it under Title VI must be

dismissed because it is immune from suit pursuant to the

Eleventh Amendment to the United States Constitution.

That amendment prevents a federal court from exercising

jurisdiction over a lawsuit against a State and its

agencies, unless that State either has consented to be

sued or has waived its immunity from suit. Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 98-

100 (1984). According to federal statute, 

“A State shall not be immune under the

Eleventh Amendment of the Constitution

of the United States from suit in

Federal Court for a violation of ...

title VI of the Civil Rights Act of 1964

[42 U.S.C. § 2000d et seq]., or the

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provisions of any other Federal statute

prohibiting discrimination by recipients

of Federal financial assistance.”

42 U.S.C. § 2000d-7; see also Garrett v. Univ. of Alabama

at Birmingham Bd. of Trustees, 344 F.3d 1288, 1290-91

(11th Cir. 2003). The Eleventh Circuit Court of Appeals

has interpreted this statute to manifest an “unmistakable

intent to condition federal funds [under Title VI] on a

state’s waiver of sovereign immunity.” Sandoval v.

Hagan, 197 F.3d 484, 493 (11th Cir. 1999), overruled on

other grounds, Alexander v. Sandoval, 532 U.S. 275

(2001). Therefore, the department, by receiving Title VI

federal funds, has waived its sovereign immunity under

the Eleventh Amendment.

B. Title VI

The Department of Human Resources next contends that

it is entitled to summary judgment on Camellia’s Title VI

claim because the foster agency has failed to produce

sufficient evidence of intentional discrimination to

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survive summary judgment. Camellia responds that it need

only show that the department’s conduct had an

unjustified discriminatory effect under Title VI. 

Title VI has two main parts. First, § 601 states

that no person 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’ covered by Title VI.”

Sandoval, 532 U.S. at 278 (quoting 42 U.S.C. § 2000d).

Private individuals may sue to enforce § 601; however,

the provision prohibits only intentional discrimination.

Id. at 279-80. 

Second, § 602 “authorizes federal agencies ‘to

effectuate the provisions of § 601 ... by issuing rules,

regulations, or orders of general applicability.’” Id.

at 278 (quoting 42 U.S.C. § 2000d). This provision

“proscribe[s] activities that have a disparate impact on

racial groups.” Id. at 281. However, there is no

private right of action to enforce § 602. Id. at 293.

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Camellia, as a private actor, can sue to enforce only

§ 601, which, as stated, requires proof of intentional

discrimination. Because Camellia seeks to produce

circumstantial evidence of intentional discrimination,

this court will address its Title VI claim under the

familiar McConnell Douglas burden-shifting framework.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

see also Brown v. American Honda Motor Co., 939 F.2d 946,

958-59 (11th Cir. 1991).

Under the McDonnell Douglas framework, the plaintiff

has the initial burden of establishing a prima-facie case

of unlawful discrimination by a preponderance of the

evidence. McDonnell Douglas, 411 U.S. at 802; Damon v.

Fleming Supermarkets of Florida, Inc., 196 F.3d 1354,

1358 (11th Cir. 1999). If the plaintiff establishes a

prima-facie case, the burden then shifts to the defendant

to rebut the presumption by articulating legitimate, nondiscriminatory reasons for its action. Chapman v. AI

Transport, 229 F.3d 1012, 1024 (11th Cir. 2000). The

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defendant has the burden of production, not of

persuasion, and thus does not have to persuade a court

that it was actually motivated by the reasons advanced.

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253-55, 258 (1981); McDonnell Douglas, 411 U.S. at 802.

Once the defendant satisfies this burden of

production, the presumption of discrimination falls away

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 factfinder to conclude that the reasons given

by the defendant were not the real reasons for the

adverse decision. Chapman, 229 F.3d at 1024. The

plaintiff may meet this burden by persuading the court

that a discriminatory reason more than likely motivated

the defendant or by demonstrating that the proffered

reason for the adverse decision is not worthy of belief.

Burdine, 450 U.S. at 256.

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PRIMA-FACIE CASE: Camellia may establish a primafacie case of discrimination in the awarding of fostercare contracts by showing that (1) it is within the

protected class; (2) it was qualified to receive a

contract; (3) its proposal for a contract was rejected;

and (4) the department awarded contracts to non-members

of the class with similar qualifications. See Oti Kaga,

Inc. v. South Dakota Housing Dev. Auth., 342 F.3d 871,

882-83 (8th Cir. 2003). The court will assume that

Camellia has established a prima-facie case. 

LEGITIMATE, NON-DISCRIMINATORY REASON: Since the

court assumes that Camellia has established a prima-facie

case, the burden of production shifts to the Department

of Human Resources to rebut the presumption by

articulating a legitimate, non-discriminatory reason for

its failure to award a contract to Camellia. 

The department explains that the reason Camellia was

not awarded a contract was because it received an RFP

score of 753.3, which was below the 800 required to be

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awarded a foster-care contract. The department has met

its burden of production.

PRETEXT: At the final stage of the McConnell Douglas

framework, the burden shifts back to Camellia which must

come forward with evidence sufficient to permit a

reasonable fact finder to conclude that the legitimate

reason given by the Human Resources Department is not its

true reason but is a pretext for discrimination. See

Vessels v. Atlanta Indep. School Sys., 408 F.3d 763, 771

(11th Cir. 2005). 

Camellia contends that the department’s reason for

not awarding it a contract is pretextual because the

scoring process was tainted by the discrimination of one

particular scorer, Joyce Wilson. As shown, Wilson gave

Camellia a score of 495, which was significantly lower

than those of the other four evaluators, who gave

Camellia scores of 682.5, 769, 887.5 and 932.5. The

department contends that Wilson was a universally hard

scorer, but that is not borne out in the data; of the 14

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agencies she scored, Camellia’s score was the lowest. In

fact, Wilson gave two other agencies scores below the

qualifying score of 800, Ability Plus, Inc., which

received a score of 545, and Families in Transition,

which received a score of 782.5. However, more

significantly, the data also show that the two other

private agencies Wilson gave her below-800 scores to,

Ability Plus and Families in Transition, were both whiteowned. In addition, Wilson gave the only other AfricanAmerican owned agency, Seeraj, a score above 800, that

is, 813.75. These scoring data, therefore, do support a

finding of racial discrimination. 

Finally, and perhaps more importantly, Camellia has

presented no evidence demonstrating that Wilson knew the

race of the owners of the individual agencies at the time

she scored the RFPs; nor has Camellia presented evidence

from which a factfinder could assess and reasonably

conclude that a white-owned private agency comparable in

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all relevant respects to Camellia was rated differently

by Wilson.

The evidence is, thus, not sufficient to raise a

genuine issue of material fact that race discrimination

more than likely motivated the department in the awarding

of foster-care contracts or that the department’s

articulated reason is unworthy of belief. The Alabama

Department of Human Resources is therefore entitled to

summary judgment on Camellia’s Title VI claim. 

C. Procedural Due Process

The Alabama Department of Human Resources next

contends that Camellia has failed to present sufficient

evidence to survive summary judgment on its procedural

due-process claim. Camellia asserts, without explanation

or citation, that it was entitled to a hearing pursuant

to Title VI. Because there is no right to a hearing in

the express language of Title VI, the procedural dueCase 2:06-cv-00735-MHT-CSC Document 48 Filed 11/05/2007 Page 16 of 24
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process claim must be addressed under the Fourteenth

Amendment. 

Deprivations of interests in life, liberty and

property are subject to the requirements of procedural

due process. Board of Regents of State Colleges v. Roth,

408 U.S. 564, 569 (1972). To prove a denial of procedural

due process, Camellia 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 that deprivation.” Bank of Jackson County

v. Cherry, 980 F.2d 1354, 1357 (11th Cir. 1992). The

sole issue is whether Camellia had a property interest in

being awarded the government contract. 

“To have a property interest in a benefit, [a private

agency] ... must have more than an abstract need or

desire for it. [It] must have more than a unilateral

expectation of it. [It] must, instead, have a legitimate

claim of entitlement to it.” Roth, 408 U.S. at 577.

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4. The Eleventh Circuit has only cited with approval

the holding of the Federal Circuit Court of Appeals that

a contractor has no property interest in government

contracts. Bank of Jackson County, 980 F.2d at 1357

(citing ATL, Inc. v. United States, 736 F.2d 677, 683

(Fed. Cir. 1984)). 

18

Such property interests “are created and their dimensions

are defined by existing rules or understandings that stem

from an independent source such as state-law rules or

understandings that secure certain benefits and that

support claims of entitlement to those benefits.” Id. 

The Eleventh Circuit has not specifically addressed

whether a bidder has a property interest in a government

contract.4

 However, the Sixth Circuit Court of Appeals

has established a standard for determining whether a

bidder has a constitutionally protected property interest

in a publicly bid contract that this court finds

persuasive. The appellate court explained that

constitutionally protected property in a government

contract can be demonstrated in two ways. “A bidder can

either show that it actually was awarded the contract and

then deprived of it, or that, under state law, the

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[government entity] had limited discretion, which it

abused, in awarding the contract.” Club Italia Soccer &

Sports Org., Inc. v. Charter Township of Shelby, Mich.,

470 F.3d 286, 297 (6th Cir. 2006). In is clear from the

record that Camellia is unable to make either of the

requisite showings. Camellia does not argue that it was

actually awarded a contract; in fact, it argues the

contrary. Further, the only limitation on the Human

Resources Department’s awarding of contracts was that

private foster-care agencies receive an RFP score of

above 800. There is no evidence in the record that the

department abused this discretion by awarding contracts

to private agencies that received scores below 800.

Therefore, the department is entitled to summary judgment

on Camellia’s procedural due-process claim. 

D. State Claims

SUPPLEMENTAL JURISDICTION: Camellia raises two state

claims: interference with an existing lawful business and

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interference with contract relations. The Department of

Human Resources contends that this court should decline

to exercise supplemental jurisdiction over these claims.

A district court has discretion to decline

supplemental jurisdiction over a claim when it “has

dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). Factors to be

taken into account include “the values of judicial

economy, convenience, fairness, and comity.” CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Courts

are strongly encouraged to dismiss state claims when the

federal claims have been dismissed prior to trial. See

id. (“federal court[s] should decline the exercise of

[supplemental] jurisdiction by dismissing the case

without prejudice” when the federal law claims have been

dismissed prior to trial).

This court has dismissed, prior to trial, all the

federal claims for which it had original jurisdiction.

However, this court will take into consideration whether

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the state claims can be brought in state court.

Ordinarily, the period of limitations for dismissed state

claims filed in federal court pursuant to 28 U.S.C.

§ 1367 is “tolled while the claim is pending and for a

period of 30 days after it is dismissed unless state law

provides for a longer tolling period.” 28 U.S.C.

§ 1367(d). However, the Supreme Court has held that the

tolling provision of § 1367(d) is unconstitutional when

applied “to claims against nonconsenting state

defendants.” Raygor v. Regents of Univ. of Minnesota,

533 U.S. 534, 542 (2002). Because the Department of

Human Resources is a nonconsenting state defendant,

§ 1367(d)’s tolling provision does not apply to it, and

this court must turn to, and rely on only, state law.

According to Alabama law, Camellia had two years from

the date of the injury to file its state claims in state

court. See 1975 Ala. Code § 6-2-38(l) (“All actions for

injury to the person or rights of another not arising

from contract and not specifically enumerated in this

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section must be brought within two years.”). Because the

injury arose in this action on or about May 12, 2005,

when the department published on its website a “Notice of

Intent to Award Contracts” and disclosed that Camellia

scored below the minimum of 800 for the awarding of

foster-care contracts, Camellia’s state claims are barred

under state law. Therefore, if this court were to

dismiss Camellia’s state claims, Camellia would not be

able to file the claims in state court because the claims

would not have been tolled by § 1367(d) and therefore

would be late. Thus, out of considerations of fairness

to the parties, this court will exercise supplemental

jurisdiction over Camellia’s state claims. 

INTERFERENCE WITH BUSINESS OR CONTRACTUAL RELATIONS:

Camellia contends that the Department of Human Resources

intentionally interfered with its lawful business and

contractual relations by discriminating against it in the

awarding of foster-care contracts. “The tort of

intentional interference with business or contractual

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relations requires: (1) the existence of a contract or

business relation; (2) [d]efendant’s knowledge of the

contract or business relation; (3) [i]ntentional

interference by the defendant with the contract or

business relation; (4) [a]bsence of justification for the

defendant’s interference; and (5) [d]amage to the

plaintiff as a result of defendant’s interference.”

Folmar & Assocs. LLP v. Holberg, 776 So.2d 112, 115 (Ala.

2000) (citation omitted). However, “a party to a

contract or a business relationship cannot be liable for

tortious interference with that contract or business

relationship.” Waddell & Reed, Inc. v. United Investors

Life Ins. Co., 875 So.2d 1143, 1154 (Ala. 2003). Since

the department, as Camellia would have it, was a party to

the contract and business relationship with it, the

department cannot be held liable for tortious

interference.

Therefore, this court holds that the Human Resources

Department is entitled to summary judgment on the claims

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of interference with a lawful existing business and

interference with contractual relations.

IV. CONCLUSION

For the foregoing reasons, the Alabama Department of

Human Resources’s motion for summary judgment will be

granted on Camellia’s federal and state claims. 

An appropriate judgment will be entered.

DONE, this the 5th day of November, 2007. 

 /s/ Myron H. Thompson 

 UNITED STATES DISTRICT JUDGE

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