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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MAXINE BROWN, a single person,

Plaintiff,

v.

STATE OF WASHINGTON DEPARTMENT

OF SOCIAL AND HEALTH SERVICES,

Defendant.

Case No. C05-5635 FDB

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY

JUDGMENT

This matter comes before the Court on Defendant Department of Social and Health Services’

Motion for Summary Judgment. After reviewing all materials submitted by the parties and relied

upon for authority, the Court is fully informed and hereby grants the motion. Plaintiff’s federal

discrimination claims based on disability and race are dismissed, with prejudice. The state law claims

are dismissed as the Court declines to exercise supplemental jurisdiction over these claims.

INTRODUCTION AND BACKGROUND

Plaintiff Maxine Brown contracted with Washington State Department of Social and Health

Services (DSHS) as an independent contractor to provide psychological counseling and family

preservation services. Plaintiff’s complaint alleges that during the course of these contracts DSHS

refused to provide Ms. Brown with referrals due to her disability (blindness) and race (African

American). Plaintiff asserts federal causes of action for violation of equal rights under 42 U.S.C. §

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26 ORDER - 2

1981 and violation of the Americans with Disability Act (42 U.S.C. § 12132). The complaint

asserts state law claims for tortious interference with contractual relations, tortious interference with

business expectancy, negligence, and violation of Washington’s Law Against Discrimination (RCW

49.60).

DSHS removed the action to this Court based on the claims arising under federal law. The

Defendant moves for summary judgment on all claims. It is DSHS’s primary contention that due to

Ms. Brown’s criminal history and the failure to disclose such in her contract application she was not

qualified to be a DSHS contractor and as such she cannot maintain this action. The Defendant

further contends that Ms. Brown has not made out a prima facie case of discrimination.

In July of 1997 Ms. Brown moved from California to Washington. In April of 1998, Ms.

Brown filed an application for a contract to provide services to clients of DSHS’ Division of

Developmental Disabilities (DDD). Because Ms. Brown had not resided in Washington for three

years, a fingerprint background check was run on Ms. Brown. Her fingerprints were sent to the FBI,

which established that she had used five aliases in the past and had an extensive criminal history in

Oklahoma, Nevada and California. Ms. Brown’s criminal history included prostitution, burglary,

robbery, drug offenses and assault with intent to murder. On the basis of this criminal history, Ms.

Brown was disqualified by DDD from performing contract work with developmentally disabled

individuals.

In March of 1998, Ms Brown applied for a contract with another department of DSHS, the

Children’s Administration, to provide professional services (therapy and treatment). Ms. Brown was

also required to submit to a criminal background check with this division of DSHS. She signed the

authorization form that she had never been convicted of a crime and never been found to have

abused or neglected a child. She signed under the penalty of perjury that she affirmed the

truthfulness of the statements made and understood that untruthfulness or misleading answers would

be cause for termination of the contract. Unlike the checks performed by the DDD, the background

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26 ORDER - 3

check performed by the Children’s Administration consisted of only in-State checks through the

Washington State Patrol and did not include fingerprint checks. Ms. Brown had no criminal history

in Washington and accordingly no disqualifying information was discovered. Ms. Brown was

awarded a professional service contract commencing in March 1998 that was renewed in 2001 and

2005. In February of 2003, Ms Brown applied for a family preservation services contract with the

Children’s Administration. This contract began in 2003 and was also renewed twice.

In 2000 the various background check units of DSHS were merged into the Background

Check Central Unit (BCCU). In 2002 the BCCU implemented a single process and data base for

background checks. Prior to this date, Ms. Brown’s disqualification due to her extensive criminal

history had only been available to DDD due to its more extensive fingerprint check protocol. On

May 8, 2006, a child placing agency submitted a background authorization signed by Ms. Brown to

authorize Ms. Brown to counsel foster children. Due to the implementation of centralized 

background checks, Ms. Brown’s criminal history was accessed and she was disqualified by the

Children’s Administration, as she had by DDD in 1998.

In deposition testimony, although unable to remember all the particulars of her criminal

history, Ms Brown admitted to her criminal background and the use of aliases. She did not dispute

the criminal record, but justified her nondisclosure by indicating her criminal record had

been“expunged” prior to moving to Washington. Ms Brown, however, failed to provide any of the

requested documentation supporting her claim of expungement.

Ms. Brown contends she did not obtain any referrals from DSHS on the basis of her

disability, blindness. Ms. Brown’s allegation of racial discrimination consists of the fact that she is an

African American woman and she feels she was treated like a child, talked down to, and no one ever

shook her hand.

The Defendant responds that the services contracts do not provide a right to referrals. The

terms of the professional services contracts with Children’s Administration required the contractor to

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26 ORDER - 4

provide services only upon receipt of and in accordance with a written authorization form issued by

DSHS. The contract provides that DSHS shall only pay for authorized services actually performed

and authorized, in advance, in writing. The contract also provided for dispute resolution through an

adjudicative proceeding. The terms of the family preservation services contracts provide that the

contract does not obligate DSHS to purchase services from the contractor. Services are requested

on a as-needed basis and payment made on a fee-for service basis. This contract also provides for

dispute resolution as the sole administrative remedy. Defendant contends there is no evidence that

Ms. Brown was discriminated against because of her disability or race.

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate where there is 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). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the

opposing party must show that there is a genuine issue of material fact for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute as to a material fact is

"genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party may not rest

upon the mere allegations or denials of the moving party's pleading, but must present significant and

probative evidence to support its claim. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

1551, 1558 (9th Cir. 1991). For purposes of this motion, reasonable doubts as to the existence of

material facts are resolved against the moving party and inferences are drawn in the light most

favorable to the opposing party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 

Summary judgment is mandated where the facts and the law will reasonably support only one

conclusion.

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AMERICANS WITH DISABILITIES ACT

Title II of the Americans with Disabilities Act (ADA) provides that "no qualified individual

with a disability shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs or activities of a public entity, or be subjected to discrimination by

any such entity." 42 U.S.C. § 12132. In order to state a claim that a public program or service

violated Title II of the ADA, a plaintiff must show: (1) she is a qualified individual with a disability;

(2) she was either excluded from participation in or denied the benefits of a public entity's services,

programs, or activities, or was otherwise discriminated against by the public entity; and (3) such

exclusion, denial of benefits, or discrimination was by reason of her disability. McGary v. City of

Portland, 386 F.3d 1259, 1265 (9th Cir. 2004); Duvall v. County of Kitsap, 260 F.3d 1124,1135 (9th

Cir. 2001).

With respect to the first element, DSHS asserts that Ms. Brown is not a “qualified individual”

with a disability due to her criminal history and her failure to disclose such in her applications for

service contracts. This Court is in agreement. A qualified individual with a disability is defined as an

individual with a disability who, with or without reasonable modifications, meets the essential

eligibility requirements for the receipt of services or the participation in programs or activities

provided by a public entity. 42 U.S.C. § 12131(2); U.S. v. Georgia, 546 U.S. 151, 126 S.Ct. 877,

879 (2006). Ms. Brown’s criminal history and /or failure to disclose precludes her from meeting the

essential eligibility requirements of providing contract services for DSHS. 

Additionally, in respect to the second element, Title II of the ADA does not apply to

employment contracts. Obtaining or retaining a job is not “the receipt of services,” nor is

employment a “program or activity” provided by a public entity. The statute governs a relationship

between a public entity, on the one hand, and a member of the public, on the other. Zimmerman v.

Oregon Dept. of Justice, 170 F.3d 1169, 1176 (9th Cir. 1999). Ms. Brown in seeking recovery based

on her contractual relationship with DSHS is not acting as a member of the public, but as a

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26 ORDER - 6

contractor in a employment relationship. Accordingly, she may not maintain an action pursuant to

Title II of the ADA.

Further, it appears that Ms. Brown was not denied any benefit of the service contracts. She

was awarded two types of contracts. The contracts did not provide an entitlement to referrals. 

DSHS fulfilled its obligation under the contracts by placing Ms. Brown’s name on the approved

provider lists.

Any one of these basis independently provide that Ms. Brown cannot maintain a disability

discrimination claim under the Americans with Disabilities Act. 

EQUAL RIGHTS UNDER 42 U.S.C. § 1981

Ms. Brown’s complaint asserts an all encompassing equal rights claim pursuant to 42 U.S.C.

§ 1981 on the basis of racial discrimination. The complaint states Plaintiff suffered race

discrimination in the form of disparate treatment, termination, constructive discharge, retaliation, and

other racially hostile actions.

These allegation deserve little comment as the Court finds no evidence to support these

allegations. Plaintiff must meet the same standards in proving a § 1981 claim that she must meet in

establishing a claim under Title VII and § 1983. Manatt v. Bank of America, NA, 339 F.3d 792, 797

(9th Cir. 2003); Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir. 1991). 

To establish a violation of the equal protection guarantee, a plaintiff must show that the defendant

intentionally discriminated against her on the basis of her race. Evans v. McKay, 869 F.2d 1341,

1344 (9th Cir. 1989); Washington v. Davis, 426 U.S. 229, 242 (1976).

To make out a prima facie case of disparate treatment, Ms. Brown must show that: (1) she

belonged to a protected class; (2) she was performing his job in a satisfactory manner; (3) she was

subjected to an adverse employment action; and (4) similarly situated employees not in her protected

class received more favorable treatment. Kang v. U. Lim America, Inc., 296 F.3d 810, 818 (9th Cir.

2002). Ms. Browns’s allegations that she was treated differently based on her race are supported by

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nothing more than Plaintiff’s subjective belief. Ms. Brown has failed to establish a prima facie case

of discrimination based on race.

To establish prima facie hostile work environment claim under either Title VII or § 1981,

employee must raise triable issue of fact as to whether (1) he was subjected to verbal or physical

conduct because of his national origin, (2) conduct was unwelcome, and (3) conduct was sufficiently

severe or pervasive to alter conditions of his employment and create abusive work environment. 

Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir. 2003). A hostile work environment

exists when the work place is permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive as to alter the condition of the victim's employment and create an

abusive working environment. Faragher v. Boca Raton, 524 U.S. 775, 786 (1998). The conduct

must be severe or pervasive enough to create an objectively hostile or abusive work environment; an

environment a reasonable person in the plaintiff's position would find hostile or abusive considering

all the circumstances. Faragher, at 787; Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,

81 (1998); Ellison v. Brady, 924 F.2d 872, 879 (9th Cir.1991). The Plaintiff’s allegations fall short of

the severity of conditions that constitute a hostile work environment. See, Vasquez v. County of

Los Angeles, 349 F.3d 634 (9th Cir. 2003).

To establish a prima facie case of retaliation, Plaintiff must produce specific and substantial

evidence that she (1) engaged in statutorily protected activity; (2) thereafter suffered an adverse

employment action at the hands of her supervisors and (3) a causal link exists between her protected

activity and the adverse employment action. Vasquesz v. County of Los Angeles, 307 F.3d 884, 896

(9th Cir. 2002); William Ray v. William Henderson, Postmaster General, 217 F.3d 1234, 1239 (9th

Cir. 2000). Plaintiff must present evidence sufficient to raise an inference that her protected activity

was the “likely reason” for the adverse action. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.

1982). Ms. Brown has produced no evidence of a causal link between her discrimination complaint

and any adverse employment action. 

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Plaintiff’s complaint and deposition testimony provide nothing more than bare assertions of

racial discrimination. These are insufficient to sustain a claim of purposeful discrimination. See,

Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983); Lindahl v. Air France, 930 F.2d 1434,

1437 (9th Cir. 1991). Plaintiff has presented no evidence to establish intentional discrimination. 

Plaintiff’s subjective personal judgment that there must have been discrimination because she was not

provided referrals does not raise a genuine issue of material fact to support a claim of race

discrimination. See, Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996).

SUPPLEMENTAL JURISDICTION

The court has supplemental jurisdiction over Plaintiff's state-law claims pursuant to 28 U.S.C.

§ 1367(a). Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental

jurisdiction over state-law claims where the court has dismissed all claims over which it has original

jurisdiction. Voigt v. Savell, 70 F.3d 1552, 1565 (9th Cir. 1995). “In the usual case in which all

federal-law claims are eliminated before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward

declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n. 7 (1988). The balance of factors generally indicates that a case belongs

in state court when the federal-law claims have dropped out of the lawsuit in its early stages and only

state-law claims remain. Id.

Here, Ms. Brown’s federal claims will all be dismissed prior to trial. Because the Court is

able to decide plaintiff's federal claims without reaching the issues underlying plaintiff's state-law

claims remaining in this case, the court will decline to exercise supplemental jurisdiction over the

state-law claims pursuant to 28 U .S.C. § 1367(c)(3). See, Acri v. Varian Assocs., Inc., 114 F.3d

999, 1000 (9th Cir.1997). 

CONCLUSION

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For the reasons set forth above, Defendant is entitled to dismissal of Plaintiff’s claims of

discrimination based on disability (ADA) and race (Section 1981). The Court declines to retain

supplemental jurisdiction over the state law claims.

ACCORDINGLY,

IT IS ORDERED:

Defendant’s Motion for Summary Judgment [Dkt #44] is GRANTED. The federal claims

are dismissed with prejudice and the state law claims dismissed, as the Court declines supplemental

jurisdiction. 

DATED this 8th day of November, 2006

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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