Calvette Brown v. Illinois Department of Human Services

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2018 *
Decided April 4, 2018
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 17‐2509
CALVETTE BROWN,
Plaintiff‐Appellant,
v.
ILLINOIS DEPARTMENT OF HUMAN
SERVICES,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 16 C 6295
Virginia M. Kendall,
Judge.
O R D E R
Calvette Brown, who is visually impaired, appeals the dismissal of her suit
against the Illinois Department of Human Services. She contends that the Department
violated federal employment‐discrimination laws and denied her due process by
ending a temporary agreement that had allowed her to operate vending facilities at a
post office. Because Brown cannot sue a state agency under 42 U.S.C. § 1983 and was
not an employee of the Department, we affirm the judgment of the district court.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17‐2509 Page 2
Brown participated in the Business Enterprise Program for the Blind. The
program, a venture between the federal government and the states, provides
self‐employment and educational opportunities for blind people. See 20 U.S.C. § 107.
The Illinois Department of Human Services administers the program and offers
participants (called vendors) opportunities to run cafeterias and stock vending
machines in government buildings. A selection committee from the Department
assesses applicants who “bid” to run available facilities. 89 I LL . ADMIN. CODE § 650.90.
Vendors can contest the committee’s decisions, first through the state agency’s hearing
process and then through arbitration before the United States Department of Education.
20 U.S.C. § 107d‐1(a), § 107d‐2; 34 C.F.R. § 395.13. Arbitral awards are subject to review
as a final agency action under the Administrative Procedure Act. 20 U.S.C. § 107d‐2(a);
5 U.S.C. § 706.
Brown bid to manage all of the vending services at the post office in Palatine,
Illinois in 2008. During the bidding process, she managed half of the vending services at
that location under a temporary agreement with the Department. After the bid
interviews, Brown was the highest scoring applicant and received a contract to operate
the whole facility. But another bidder, Marco Gianotti, filed a grievance about the
bidding process, saying that one of the committee members was biased against him.
The Department agreed with him and decided to re‐bid the facility. Brown grieved that
decision. The Department said the Brown could continue to manage half of the post
office location under her temporary agreement while the grievance was pending.
A second round of bidding occurred, but Brown lost this time. The Department
awarded the vending license to Gianotti. Brown amended her still‐pending grievance
against the Department. She asserted that the members of the second committee were
biased against her and that the committee lacked the vocational rehabilitation counselor
required by state regulations, 89 I LL . ADMIN . CODE § 650.90(c). A hearing officer denied
some of Brown’s grievances and, because others were not ripe, let those remain
pending. An arbitration panel affirmed the officer’s decision in October 2010.
Two years after the arbitration panel denied Brown relief, the Department ended
Brown’s temporary agreement to operate at the Palatine facility. Brown grieved that
termination and argued again that the Department should not have held a second
round of bidding. In March 2014, after a hearing officer ruled against her, Brown
requested arbitration. This time, the arbitration panel issued a favorable decision for
her. Two of the three arbitrators found that the second bidding process was not

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No. 17‐2509 Page 3
impartial. They also ruled that the Department should not have cancelled her
temporary agreement while she had pending grievances. The arbitrators ordered a third
round of bidding, but did not award her damages for the income she lost after the
Department ended her temporary agreement.
Brown did not participate in the third round of bidding; instead she filed this
short‐lived employment‐discrimination suit against the Illinois Department of Human
Services. She accused the Department of violating the Equal Pay Act, 29 U.S.C. § 206(d),
the Americans with Disabilities Act, 42 U.S.C. § 12101, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, and Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681(a), denying her right to due process, and breaching her contract. She also
challenged as inadequate the arbitral award that followed her challenge to the
rescission of her temporary agreement to operate part of the Palatine facility. The judge
dismissed her complaint for lack of standing, citing her failure to participate in the third
round of bidding. The court alternatively ruled that she did not state a claim against the
Department under any of the federal employment‐discrimination statutes that she
relied on because she did not allege that she was an employee. And her constitutional
claim for denial of due process failed because state agencies are not suable persons
under 42 U.S.C. § 1983. The court then exercised its discretion to dismiss the
supplemental state‐law claim for breach of contract. (The judge did not address Brown’s
contention that the arbitral award was inadequate. But Brown does not develop on
appeal any claim under the Administrative Procedures Act that the award was
arbitrary, so we need not discuss that claim further.)
We begin by assessing whether Brown has standing to sue and conclude that she
does. The Department argues that Brown cannot show an injury from the third round of
bidding because she did not participate in it, and therefore she lacks Article III standing.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). But the Department mistakenly
assumes that Brown is challenging only the third round of bidding. Brown also
challenges as unlawful the Department’s decisions to end her temporary agreement and
prevent her from operating the Palatine facility. She contends that these decisions
violated employment‐discrimination laws, diminished her income, and caused her
other injuries. These redressable injuries arise from the allegedly unlawful termination
of her temporary contract and thus supply standing to sue. See id.
But standing to sue is as far as Brown gets. Brown does not allege that she was an
employee or prospective employee of the Department. An employment relationship is
required under each of the familiar anti‐discrimination statutes that she invokes for

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No. 17‐2509 Page 4
employment discrimination. See Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d 944,
951 (7th Cir. 2014) (requiring employment relationship to state claim under ADA and
Title VII); Tamayo v. Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008) (same for Equal Pay
Act). Brown responds that she is an employee because the introductory text of the
relevant statute discusses providing “employment” to people who are blind, see 20
U.S.C. § 107(a). But Brown is not employed by the Department; she is self‐employed.
The service agreement that she relies upon to state her claim expressly describes the
vendors as “self‐employed.” See also Del. Depʹt of Health & Soc. Servs., 772 F.2d 1123,
1127 (3d Cir. 1985) (vendors are “third party beneficiaries of agreements between the
participating states and the federal government”). Because the Department did not
employ her, Brown failed to state a claim that the Department violated these federal
anti‐discrimination laws.
The same conclusion is true for Brown’s claim under Title IX. We construe that
claim, like her others, as one of employment discrimination because she contends only
that that the Department prevented her from “progressing financially” based on her
sex. But Brown has not argued, as she must to move forward on this claim, that the
blind‐vendor program is covered under Title IX, see 20 U.S.C. §§ 1681, 1687. She must
also persuade us to overturn our precedent that all employment‐discrimination claims
must be brought under Title VII. See Waid v. Merrill Area Pub. Sch., 91 F.3d 857 (7th Cir.
1996), abrogated on other grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246
(2009). Again she has not attempted this. But these impediments to the side, Brown
cannot maintain a claim for employment discrimination under Title IX for the same
reason her other claims fail—because she is not an employee of the Department.
Brown’s due‐process claim is also meritless. Brown can sue persons for
constitutional violations under 42 U.S.C. § 1983, but state agencies are not “persons”
under that statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore she
cannot bring a § 1983 claim against the only defendant, the Illinois Department of
Human Services. See id.
We have considered Brown’s remaining arguments, and none has merit. The
judgment is AFFIRMED.

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