[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15734
AUGUST 14, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00735-CV-T-N
CAMELLIA THERAPEUTIC FOSTER AGENCY, LLC,
represented by Joseph Appiah, Chairman
Therapeutic Foster Children, Foster
Parents and Staff,
Plaintiff-Appellant,
versus
BOB RILEY, Hon. Governor of Alabama in his
official capacity as the Chairman of the Alabama
State Department of Human Resources, et al.,
Defendants,
ALABAMA DEPARTMENT OF HUMAN RESOURCES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 14, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
This is Camellia Therapeutic Foster Agency, LLC’s appeal from the district
court’s grant of summary judgment to the defendant, the Alabama Department of
Human Resources, on Camellia’s race discrimination claim filed under Title VI of
the Civil Rights Act, 42 U.S.C. § 2000d.
I.
Camellia Therapeutic Foster Care Agency, LLC was a private foster care
placement agency in Alabama owned and operated by Joseph Appiah, an African
American male. Camellia was licensed by the Alabama Department of Human
Resources and received annual contracts from the department to provide foster care
services for the state in 2004 and 2005. As part of its business Camellia
investigated potential foster parents, placed foster children in qualifying parents’
care, and monitored the placements for compliance with state regulations. In
February 2005 the department issued to private foster care agencies, including
Camellia, a Request for Proposal inviting them to file responses seeking contracts
to provide foster care services for the state in 2006. The request provided criteria
that the private agencies had to meet in order to receive a contract to begin or
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continue providing foster care services for the state.1
Twenty-two private agencies, including Camellia, submitted responses to the
department. Each response was scored by five evaluators on a scale ranging from
0 to 1000, and the scores of the five evaluators were then averaged into one score.
The private agencies that had an average score of 800 or above would be awarded a
contract by the state. Those that scored under 800 would not.
Camellia’s response received an average score of 753.3. Four of the five
evaluators gave Camellia’s response a score below 800, including Joyce Wilson,
who gave it a score of 495. As a result of its average score, Camellia was denied a
contract to provide foster care services for the state and had to shut down. Four
other providers also fell below the 800-point threshold and were denied contracts.
Camellia sued the department, alleging that it had violated Title VI of the
Civil Rights Act, 42 U.S.C. § 2000d.2 The district court granted the department’s
motion for summary judgment on Camellia’s Title VI claim and Camellia appeals,
contending that the district court erred by: (1) concluding that the department
1
Agencies were not required to be licensed in order to submit a response and could be
awarded contracts even if they had not yet been licensed by the department. However, in order
to begin performing services under a department contract, an agency was required to file a
license application with the department by June 7, 2005.
2
Camellia’s lawsuit against the department also included a procedural due process claim
under the Fourteenth Amendment and state law claims for interference with an existing business
and a contractual relationship. Camellia does not appeal the district court’s judgment for the
department on these claims, and therefore has abandoned any issue as to them.
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sufficiently articulated a legitimate, nondiscriminatory reason for denying Camellia
a contract; and (2) deciding that Camellia had not presented sufficient evidence to
raise a genuine issue of material fact that the department’s proffered
nondiscriminatory reason was pretext for discrimination.
II.
Title VI of the Civil Rights Act provides: “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. For purposes of reviewing the district court’s grant of summary judgment
in favor of the department on Camellia’s Title VI claim, we use the familiar
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), burden
shifting framework. See Ga. State Conference of Branches of NAACP v. Georgia,
775 F.2d 1403, 1417 (11th Cir. 1985) (citing McDonnell Douglas, 411 U.S. 792,
93 S. Ct. 1817) (“The elements of a [Title VI] disparate impact claim may be
gleaned by reference to cases decided under Title VII.”), abrogated on other
grounds by Lee v. Etowah County Bd. of Educ., 963 F.2d 1416 (11th Cir. 1992).
Under that framework, when the plaintiff is faced with a motion for
summary judgment, he bears the burden of establishing a prima facie case of
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discrimination. Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d
1344, 1347 (11th Cir. 2007). “Once the plaintiff has made out the elements of the
prima facie case, the burden shifts to the employer to articulate a
non-discriminatory basis for its employment action.” Id. “If the employer meets
this burden, the plaintiff must show that the proffered reasons were pretextual.” Id.
The district court assumed that Camellia had made out a prima facie case of
discrimination, and we will do the same.
A.
Camellia first contends that the district court erred by concluding that the
department met its burden to produce a legitimate, nondiscriminatory reason for
denying Camellia a contract to provide foster care services for the state. According
to Camellia, the department’s proffered nondiscriminatory reason for denying
Camellia a contract—that its average score on the response was too low—was
based on subjective criteria. Camellia argues that the department has not
articulated a clear and reasonably specific factual basis for the below-800 score on
Camellia’s response.
“Once the plaintiff has established a prima facie case, thereby raising an
inference that he was the subject of intentional race discrimination, the burden
shifts to the defendant to rebut this inference by presenting legitimate,
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non-discriminatory reasons for its employment action.” Holifield v. Reno, 115
F.3d 1555, 1564 (11th Cir. 1997). “This intermediate burden is ‘exceedingly
light.’” Id. (citation omitted). “Subjective reasons can be just as valid as objective
reasons . . . . A subjective reason is a legally sufficient, legitimate,
nondiscriminatory reason if the defendant articulates a clear and reasonably
specific factual basis upon which it based its subjective opinion.” Chapman v. AI
Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) (en banc).
The department’s proffered nondiscriminatory reason for denying Camellia
a contract was that its average score, 753.3, was below the cutoff point of 800
points. The department’s detailed scoring instrument used the following ten areas
of evaluation, each of which contained multiple criteria: organization, start-up,
referral, service delivery, target areas, discharge policy, prior experience, staff
qualification, references, and compensation. Joyce Wilson, one of Camellia’s
evaluators who scored it below the 800 point threshold, testified that she gave
Camellia the score that she did because: Camellia’s response did not sufficiently
address the training of foster parents; it did not sufficiently address the training of
staff; the response did not describe the available services for birth parents; it did
not account for training foster parents in therapeutic foster care; Camilla’s program
was not a statewide one; there was a discrepancy in the response regarding
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employee background checks; and the response did not provide that the department
would be contacted in the case of a critical incident with a foster child.
Contrary to Camellia’s contention, these are objective criteria because they
are “sufficiently susceptible of objective determination.” Adams v. Reed, 567 F.2d
1283, 1287 & n.8 (5th Cir. 1978). Either a response describes available services
for birth parents, or it does not. Either a response accounts for training foster
parents in therapeutic care, or it does not. And so on. These are issues of fact, not
opinion; a response’s failure to meet these criteria is verifiable. The district court
correctly concluded that the department carried its burden of producing a
legitimate, nondiscriminatory reason for denying Camellia a contract.
B.
Camellia next contends that, even if its failing score on the response were a
legitimate, nondiscriminatory reason for denying it a contract, the district court
erred by deciding that it had not raised a genuine issue of material fact that the
department’s proffered reason was actually a pretext for unlawful discrimination.
To show that the employer’s reasons were pretextual, the plaintiff
must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could find them
unworthy of credence. If the plaintiff does not proffer sufficient
evidence to create a genuine issue of material fact regarding whether
each of the defendant employer’s articulated reasons is pretextual, the
employer is entitled to summary judgment on the plaintiff’s claim.
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Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004) (internal quotation
marks and citations omitted).
Camellia first argues that the request for proposal process was a pretext for
discrimination because the criteria the graders used were subjective. We have
already addressed this argument. While Camellia may have disagreed with the
relevant criteria or the evaluators’ judgment about its response, that does not make
the criteria subjective.
Second, Camellia argues that the request for proposal process could not have
been the legitimate reason for denying it a contract because the department
reserved the right to deny state approval if it is “in its best interest to do so.”
However, as Camellia acknowledges in its brief, the department did not exercise its
discretionary authority to enter a “best interest” denial. All the foster care agencies
whose scores were above 800 were awarded state contracts, and all the agencies
whose scores were below 800 were not. The fact that the department left itself an
escape clause for extreme circumstances, which was not used, does not create a
genuine issue of material fact concerning pretext.
Third, Camellia argues that two other foster care agencies owned by non-
minorities—National Mentor, Inc. and Children and Families First of
Alabama—received higher scores on their responses even though they were less
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qualified. These two other applicants were less qualified, Camellia says, because
they had not worked in Alabama before, while Camellia had.
It does not follow, however, that just because National Mentor and Children
and Families First had not worked in Alabama before that they were less qualified
than Camellia. “Prior experience” was one of a number of factors to be considered
by the department in selecting foster care agencies. Other factors included “service
delivery” and “training requirements,” and the evaluators determined that Camellia
was deficient as to these two factors as well as some others. National Mentor and
Children and Families First did not have these same problems with their responses.
As the district court noted, Camellia has not “presented evidence from which a
factfinder could assess and reasonably conclude that a white-owned private agency
comparable in all relevant respects to Camellia was rated differently by Wilson.”
(emphasis in original).
Finally, Camellia argues that it presented direct evidence that the department
had discriminated against it based on race before the request for proposal was
issued. This indicates, according to Camellia, that the department’s request was
nothing but a pretext to deny Camellia a state contract. Camellia asserts that the
following is direct evidence of discrimination against it: the department said that
Camellia was “growing too fast;” the department believed that some of Camellia’s
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foster parents were not licensed by the state; the department removed some foster
children from Camellia-approved foster parents; the department required Camellia
to present proof that its foster parents had background checks; and the department
subjected Camellia to “unfounded investigations and audits.”
None of this is direct evidence of discrimination. Direct evidence is
evidence which does not require an inferential leap from the statement or action by
the department to the conclusion that the adverse decision was made with the intent
to discriminate. See Carter v. Three Springs Residential Treatment, 132 F.3d 635,
642 (11th Cir. 1998). The department’s statements and actions cited by Camellia
do not directly indicate an intent to discriminate. Instead, most of them seem to
indicate an intent by the department to insure that all the foster children in the
state’s care are placed with foster parents who have been licensed after undergoing
the required background checks. They are not even circumstantial evidence of an
intent to discriminate based on race.
Moreover, Camellia has not presented any evidence that other non-minority
owned foster care agencies were treated differently—that they were not scrutinized
as carefully by the department. In fact, all indications are to the contrary. Four
non-minority owned foster care agencies—NBA CSC, Success Homes, Family
Values, and Ability Plus—were denied contracts because, like Camellia, their
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responses’ average scores were below 800. Two of those agencies had been
providing foster care services for the department at the time and, like Camellia,
were forced to stop doing so. At the same time, the response of the only other
minority-owned foster care agency to submit an application—Seeraj—was scored
above 800 and granted a contract.
For these reasons, Camellia has not presented evidence establishing a
genuine issue of material fact that the department’s evaluation of its application
was a pretext for discrimination. The district court correctly granted summary
judgment for the department on Camellia’s Title VI claim.
AFFIRMED.
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