Cook v. Mississippi Department of Human Services , 108 F. App'x 852 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2004
_______________________
Charles R. Fulbruge III
No. 03-60380 Clerk
_______________________
CATHY B. COOK,
Plaintiff – Appellant,
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES,
Defendant – Appellee.
_______________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:01-CV-46-6
_______________________
Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant, Cathy B. Cook (“Cook”), a white female, brought
this claim of reverse racial discrimination against the
Mississippi Department of Human Services (“MDHS”) after MDHS
selected Samuel Buchanan (“Buchanan”), a black male, for the
position of Director of the Chickasaw County office of MDHS
(“Chickasaw County DHS”). For the reasons set forth below, we
affirm the district court’s entry of summary judgment in favor of
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
MDHS.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cathy Cook began her employment at the Chickasaw County DHS
as a clerk in 1986 and worked her way up to the position of case
manager in 1999. When the position of Director of the Chickasaw
County DHS became vacant, Cook applied for the job.
Out of fourteen applicants, the Mississippi State Personnel
Board selected five candidates who met the minimum qualifications
for the county director position. Among these “eligibles,” two
were white, including Cook, and three were black, including
Samuel Buchanan. The five eligibles were tested, interviewed,
and evaluated by a panel of four MDHS officials. The MDHS panel
ranked the candidates and submitted their top three choices to
the governor; all three recommended candidates were black.
Buchanan was ranked second, so his name was forwarded to the
governor for final consideration; Cook was ranked fifth, so she
was eliminated from the hiring process. Buchanan was ultimately
hired for the director position.
Believing she had been passed over for the county director
position because of her race, Cook brought a claim of reverse
racial discrimination against MDHS under Title VII and 42 U.S.C.
§ 1981. MDHS responded that it hired Buchanan because he was the
most qualified candidate and moved for summary judgment. In
opposition to MDHS’s summary judgment motion, Cook argued that
2
she was clearly better qualified than Buchanan. The district
court found that Cook had not offered sufficient evidence to
raise a fact question about whether MDHS’s reason for hiring
Buchanan was a pretext for race discrimination. Thus, the
district court granted summary judgment in favor of MDHS. Cook
timely appealed.
II. ANALYSIS
On appeal, Cook challenges the district court’s entry of
summary judgment on behalf of MDHS. She argues that the district
court’s exclusion of a statement attributed to Mississippi State
Senator Jack Gordon as hearsay was error. She further contends
that the district court’s requirements at the prima facie case
stage were too burdensome, and therefore erroneous. Finally,
Cook asserts that the district court erred in finding that she
failed to raise a fact question on pretext.
A. Exclusion of Statement Attributed to Senator Gordon
Admission or exclusion of evidence is within the sound
discretion of the district court. Absent proof of abuse of
discretion, we will not disturb a district court’s evidentiary
rulings. Jon-T Chem., Inc. v. Freeport Chem. Co., 704 F.2d 1412,
1417 (5th Cir. 1983).
Cook contends that the district court erred by refusing to
consider her account of a statement attributed to Senator Gordon.
The record contains no statements made directly by Senator
3
Gordon, either in an affidavit or in testimony. Rather, Cook
recounted a statement purportedly made by Senator Gordon in her
own affidavit and in her deposition, which she submitted with her
motion opposing summary judgment. In her affidavit, Cook stated
that after Buchanan was appointed Director, she called Senator
Gordon to express her dissatisfaction about not being promoted.
During that conversation, Senator Gordon allegedly told Cook
that, after speaking to MDHS director Janice Broom Brooks,1 he
believed that Buchanan’s selection as director was racially-
motivated. The district court deemed this statement to be
inadmissible hearsay and did not consider it in reviewing MDHS’s
summary judgment motion.
On appeal, Cook does not argue that Senator Gordon’s
purported statement was not hearsay. She claims instead that her
account of his statement should have been admitted under the
hearsay exceptions in FED. R. CIV. P. 801, as an admission by a
party-opponent, and FED. R. CIV. P. 807, the residual exception to
the hearsay rule.
Rule 801 (d)(2)(D) provides that a statement by a party’s
1
Cook’s account of her conversation with Senator Gordon also
included statements allegedly made by Janice Brooms Brooks to
Senator Gordon. Though the trial court did not address these
particular statements directly (it held only that all statements
offered were inadmissible hearsay), they were presumably excluded
because they constituted “double hearsay.” However, we need not
assess the propriety of the district court’s exclusion of those
statements because Cook does not raise the issue of their
admissibility on appeal.
4
agent or servant concerning a matter within the scope of agency
or employment, and made during the existence of the agency
relationship, is not hearsay. Cook argues that Gordon is an
agent or servant within the meaning of Rule 801 because the
Mississippi legislature has oversight over MDHS and its finances,
and Senator Gordon is Chairman of the Senate Appropriations
Committee. To be considered an “agent” under Rule 801 (d)(2)(D),
a person need not have been an actual decision-maker in the
hiring process. See Yates v. Rexton, Inc., 267 F.3d 793, 802
(8th Cir. 2001). However, a person must at least have been
involved in or participated in the process leading to the
challenged employment decision to establish a relevant agency
relationship. See Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th
Cir. 1983); cf. Yates, 267 F.3d at 802 (significant involvement,
either as an advisor or participant in a process leading to the
challenged decision, may be enough to establish agency under Rule
801 (d)(2)(D)).
Here, MDHS administered all hiring procedures for the
director position, and the governor’s office ultimately selected
the new director. Members of the Mississippi legislature,
including Senator Gordon, were far removed from actual
involvement or participation in the process of selecting a new
director. Therefore, Senator Gordon cannot be considered an
“agent” of MDHS in the context of the county director hiring
5
process, and his purported statement to Cook was not admissible
under Rule 801's exception to the hearsay rule.
Cook also argues that the statement attributed to Senator
Gordon should have been admitted under FED. R. EVID. 807, the
residual exception to the hearsay rule. Under Rule 807, a
statement having circumstantial guarantees of trustworthiness,
equivalent to those established under the other hearsay
exceptions, is admissible if the court determines that: (A) the
statement is offered as evidence of a material fact; (B) the
statement is more probative on the issue than any other evidence
reasonably procurable by the proponent; and (C) the interests of
justice will be best served by admitting the statement. Congress
intended the residual exception to be used only in rare
circumstances. See Huff v. White Motor Corp., 609 F.2d 286, 291
(7th Cir. 1979); S.E.C. v. First City Fin. Corp., Ltd., 890 F.2d
1215, 1225 (D.C. Cir. 1989).
We find that this is not one of those uncommon circumstances
warranting an exception to the hearsay rule under Rule 807.
First, Cook points to no circumstantial guarantees of
trustworthiness that justify admission of Senator Gordon’s
purported statement. Second, and most importantly, the purported
statement was not so material that it must have been admitted in
the interests of justice, because it could not raise a genuine
issue of material fact as to racial discrimination. In her
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deposition, Cook stated that Senator Gordon was not informed by
anyone at MDHS that Buchanan was hired because of his race
Rather, it was merely Senator’s Gordon’s purported opinion that
Buchanan was chosen because of his race. A “subjective belief of
discrimination, however genuine, may not be the basis of judicial
relief.” Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163
F.3d 309, 313 (5th Cir. 1999). Thus, the purported statement by
Senator Gordon was not admissible under Rule 807, and the
district court did not abuse its discretion in refusing to
consider it as summary judgment evidence.
B. Reverse Race Discrimination Claim
1. Standard of Review
Rule 56 “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party’s case.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)) (emphasis in original). Summary judgment
is proper if the movant can demonstrate there are no genuine
issues as to any material fact. FED. R. CIV. P. 56 (c). To
overcome a motion for summary judgment, the non-movant must show
that there is indeed a genuine issue as to a material fact, based
on evidence greater than mere conclusory allegations or
unsubstantiated assertions, that warrants a jury trial. Little,
7
37 F.3d at 1075; Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir.
1994). The trial court must make all reasonable inferences in
favor of the non-moving party, and may not make credibility
determinations or weigh the evidence. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). We review a grant of summary
judgment de novo. Hanks v. Transcon. Gas Pipe Line Corp., 953
F.2d 996, 997 (5th Cir. 1992).
The summary judgment analysis is the same for claims of race
discrimination under Title VII and 42 U.S.C. § 1981. Pratt v.
City of Houston, Tex., 247 F.3d 601, 605 n.1 (5th Cir. 2001);
Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th
Cir. 2002). Absent direct evidence, this court applies the
three-step burden-shifting framework articulated by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). Under that framework, the plaintiff must first set forth
a prima facie case of discrimination. Id. at 802. If the
plaintiff makes a prima facie case, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for
the underlying employment action. Id.Finally, if the employer proffers a legitimate rationale for
the employment action, the burden shifts back to the plaintiff to
show that the employer’s proffered reason was a mere pretext for
racial discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 507-08 (1993). To survive summary judgment, in this third
8
stage, the plaintiff must support his claim of pretext with
evidence that “discrimination lay at the heart of the employer’s
decision.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th
Cir. 2002).
2. Prima Facie Case
Cook initially argues that the district court applied the
wrong legal standard in considering whether she had established a
prima facie case. Cook contends the district court required her
to prove that she was “better qualified” at the prima facie
stage, when she should have been required only to present
evidence of the following elements, set forth under McDonnell
Douglas:
1. that she was a member of a protected class;
2. that she was qualified for the position sought;
3. that she experienced an adverse employment
decision; and
4. that she was replaced by someone outside the
protected class.
411 U.S. 792, 802 (1973).
The four elements utilized in McDonnell Douglas are not the
exclusive means of proving a prima facie case of racial
discrimination under Title VII. See Int’l Brotherhood of
Teamsters, 431 U.S. 324, 358 (1977); Jones v. W. Geophysical Co.
of Am., 669 F.2d 280, 284 (5th Cir. 1982). In McDonnell Douglas,
the Supreme Court specifically observed that “[the] facts
necessarily will vary in Title VII cases,” and the prima facie
9
proof required in that case “is not necessarily applicable in
every respect to differing factual situations.” 411 U.S. at 802.
Nonetheless, the standard imposed by the district court in
this case was too onerous at the prima facie case stage. The
district court required Cook to demonstrate the following:
1. that she was a member of a protected class;
2. that she was qualified for the position sought;
and
3. that the position eventually went to a less
qualified applicant outside the protected class.
[Emphasis added]. In Celestine v. Petroleos de Venezuella SA, we
noted that requiring plaintiffs to show at the prima facie case
stage they were “better qualified” than those promoted would have
been an erroneous expansion of the elements necessary to prove a
prima facie case for racial discrimination. Celestine, 266 F.3d
343, 356 (5th Cir. 2001) (holding that the district court
required plaintiffs to show they were better qualified in order
to rebut the defendant’s proffered nondiscriminatory explanation
for its employment decision, not to make their prima facie case);
see also Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th
Cir. 2001) (holding that a prima facie case is established once
the plaintiff shows she meets objective employment
qualifications; the issue of whether she meets subjective hiring
criteria is addressed at the later stages of the Title VII
analysis). We adhere to our reasoning in Celestine; the district
court’s requirement that Cook show Buchanan was less qualified
10
for the director position at the prima facie case stage imposed
too high a burden on Cook and was therefore erroneous.2 Indeed,
the record shows that Cook presented evidence of each element of
her prima facie case to survive summary judgment. However, we
find that the district court’s imposition of incorrect prima
facie requirements was harmless error because Cook failed to
raise a genuine issue of material fact concerning pretext.
3. Pretext
Because Cook made a prima facie case of race discrimination,
the burden shifted to MDHS to offer a legitimate reason for
hiring Buchanan over Cook. MDHS asserted that Buchanan was
chosen for the director position because he was “more qualified
for the position [than Cook] in terms of education, budgetary
experience, and leadership ability.” Having submitted this
rationale, the burden then fell back on Cook to present evidence
raising a genuine issue of material fact that MDHS’s proffered
2
We also note that the standard articulated by the district
court does not reflect the standard set forth in the case cited
by the court — Jett v. Dallas Independent School District, 798
F.2d 748, 756 (5th Cir. 1986). The Jett court merely noted that
the plaintiff presented more evidence than necessary to make a
prima facie case, including evidence of better qualifications.
Id. Jett then cited Chaline v. KCOH, Inc., a case that also did
not require a plaintiff to show she was more qualified to
establish a prima facie case. Id. (citing Chaline, 693 F.2d 477,
480-81 (5th Cir. 1982) (holding that a plaintiff must demonstrate
the following to make a prima facie case of discrimination: (1)
that she belongs to a protected class; (2) that she was qualified
for the particular position; (3) that, despite her
qualifications, she was rejected or discharged; and (4) that she
was replaced by a nonminority)).
11
reason for hiring Buchanan was a pretext for race discrimination.
St. Mary's Honor Ctr., 509 U.S. at 507-08. We agree with the
district court’s finding that the evidence presented by Cook
failed to create a jury issue on pretext.
Clearly Better Qualified
The thrust of Cook’s challenge to MDHS’s proffered rationale
for selecting Buchanan is that she was clearly better qualified
than Buchanan. This court has held that evidence of a
plaintiff’s superior qualifications may be probative of pretext
because selection of a lesser qualified applicant might indicate
a discriminatory motive; “[h]owever, the bar is set high for this
kind of evidence.” Celestine, 266 F.3d at 357. A plaintiff may
show pretext sufficient to survive summary judgment by providing
evidence that she was clearly better qualified as opposed to
merely better qualified. See Celestine, 266 F.3d at 356-57;
E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th
Cir. 1995); see also Deines v. Tex. Dept. of Protective &
Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999) (evidence of
superior qualifications is probative of pretext); Walther v. Lone
Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992) (a plaintiff is
entitled to a jury trial in an ADEA case if he presents evidence
that he was clearly better qualified than younger employees who
were retained) (emphasis in original). Similar or equivalent
qualifications will not give rise to a fact question as to
12
pretext. Price, 283 F.3d at 723.
In support of her assertion that she was clearly better
qualified than Buchanan, Cook first contends that Buchanan should
have been disqualified from applying for the position because he
allegedly violated state administrative policy and the Hatch Act,
5 U.S.C. § 1501. In 1999, Buchanan ran in a partisan election
for Justice Court Judge of Chickasaw County. Mississippi State
Policy and Procedures and the Hatch Act prohibit a state employee
from being a candidate for political office in a partisan
election. However, Buchanan was never cited for any infraction.
Had Buchanan been cited, a disciplinary committee could have
reasonably pardoned him based on MDHS’s argument that he was
merely a contract worker for MDHS. Because Buchanan had no
adjudicated violation on his record, Cook has presented no
evidence with this argument that should have been considered as a
negative qualification of Buchanan’s in this discrimination case.
Cook next claims that her qualifications, when set alongside
Buchanan’s, demonstrate that she was clearly better qualified to
be Director. Her qualifications, as set forth in her summary
judgment evidence, are as follows: (1) an Associate’s Degree in
Secretarial Science, which incorporated instruction in
accounting; (2) fourteen years of work experience at MDHS,
consisting of two years as a clerk typist and twelve years as a
welfare eligibility case manager; (3) experience as a legal
13
secretary; (4) administrative work experience with the Soil
Conservation Service office in Tupelo, Mississippi, which
included helping to create a computer program for budgets
throughout the region; and (5) management of a convenience store,
including supervision of four store employees. Cook noted that
she scored a perfect 100 on the MDHS personnel test administered
during the interview process,3 and that MDHS policy allowed
relevant work experience to be substituted for educational
experience on a year-to-year basis. She also submitted several
affidavits of persons attesting to her good character and
qualifications.4
In contrast, Buchanan possesses a Bachelor’s Degree in
Social Sciences and a Master’s Degree in Public Administration.
His graduate work included a study on the economics of
Mississippi counties, policy work at the Mississippi Board of
Funeral Service, and an internship with the city manager of
3
All of the eligibles scored 100 except for Buchanan, who
received a score of 97.
4
Cook also attached an affidavit of Archie Paul Wood, a
retired County Director of Lee County, Mississippi, stating
Wood’s belief that he suffered from racial discrimination during
his career at MDHS. Cook also included the complaint filed in a
lawsuit by a former MDHS employee who was terminated, allegedly
based on race; and statistics showing that four of the last five
county directors appointed were black, and that MDHS has 56 white
and 21 black county directors in the state. However, Cook did
not explain, either in the district court or on appeal, nor is it
evident to this court, how this evidence raises a fact question
about whether MDHS’s reason for hiring Buchanan – his leadership,
budgetary, and educational skills – was pretext for
discrimination.
14
Grenada, Mississippi. Buchanan stated in his deposition that
while he did not have budgetary experience from prior employment,
he had taken two graduate classes on creating budgets. Further,
Buchanan’s proffered work experience consisted of: (1) two years
as a contract employee with MDHS, finding employment for
Temporary Aid for Needy Families recipients and occasionally
teaching job readiness classes; (2) twelve years experience as
director of a university dormitory, which included supervision of
five to fifteen employees; (3) one summer as park director for
the City of Okolona, including supervision of three to five part-
time employees; (4) assistant counselor for a youth offender
program in the regional community counseling office; and (5)
supervision of federal prisoners at a halfway house. Buchanan
scored a 97, a passing score, on the MDHS personnel test.
MDHS justified its selection of Buchanan over Cook based on
Buchanan’s education, budgetary experience, and leadership
ability. In response, Cook emphatically argues that her long
tenure at MDHS as case manager compared to Buchanan’s lack of any
experience in that position (a position held by the employees
that Buchanan now supervises) demonstrates that she was clearly
better qualified and that MDHS’s justification was pretextual.
Nevertheless, Cook’s more extensive work experience at MDHS does
not give rise to a triable fact question about pretext because it
is not sufficient to demonstrate that she was clearly better
qualified.
15
First, MDHS was free to place greater import on Buchanan’s
graduate education and training than Cook’s experience as a case
manager. An employer is free to determine which type of
experience is more relevant to an open position. See La. Office
of Cmty. Servs., 47 F.3d at 1445-46; see also Price, 283 F.3d at
723 (finding that plaintiff’s better education, work experience,
and longer time with the company did not demonstrate that he was
clearly better qualified). Therefore, evidence of substantially
more of a certain type of experience is not probative of superior
qualifications. See La. Office of Cmty. Servs., 47 F.3d at
1445-46. We do not second guess an employer’s weighing of some
qualifications over others unless such weight is irrational or
application of those standards is inconsistent. Id. Here, Cook
presents no evidence that MDHS’s emphasis on education, budgetary
experience, or leadership ability was irrational, or that the
standards were inconsistently applied; hence, we do not question
MDHS’s decision to value those skills more highly than case
manager experience with MDHS.
Second, and most importantly, Cook’s overall resume fails to
glaringly outshine Buchanan’s, so as to show that she was clearly
better qualified. To raise a fact question about pretext based
on better qualifications, a plaintiff’s qualifications must, as a
whole, “leap from the record and cry out to all who would listen
that he was vastly — or even clearly — more qualified for the
16
subject job.” See Price, 283 F.3d at 723 (quoting Odom v. Frank,
3 F.3d 839, 847 (5th Cir. 1993)). In E.E.O.C. v. Louisiana
Office of Community Services, we emphasized that:
unless disparities in curricula vitae are so apparent
as virtually to jump off the page and slap us in the
face, we judges should be reluctant to substitute our
views for those of the individuals charged with the
evaluation duty by virtue of their own years of
experience and expertise in the field.
47 F.3d 1438, 1444 (5th Cir. 1995) (quoting Odom, 3 F.3d at 847).
Accordingly, disparities in qualifications are “generally not
probative evidence of discrimination unless those disparities are
‘of such weight and significance that no reasonable person, in
the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.’”
Celestine, 266 F.3d at 357 (quoting Deines, 164 F.3d at 280-81).
When contrasted with Buchanan’s resume, including his master’s
degree in public administration and his more extensive
supervisory experience, Cook’s qualifications do not “jump off
the page and slap us in the face;” hence, a reasonable juror
could not conclude that Cook’s qualifications were blatantly
superior to Buchanan’s.
Based on the evidence presented at summary judgment, a
factfinder could conclude that Cook was qualified to be Director
based on her years with MDHS as a case manager, the positive
reviews of work performance during that time, the affidavits
offered in support of her abilities, and her perfect score on the
17
personnel test. Nonetheless, Cook fails to raise a fact question
about whether MDHS’s reason for selecting Buchanan — that he was
the more qualified candidate — was pretextual because she has not
presented evidence that could lead a rational factfinder to
conclude that she was clearly better qualified than Buchanan.
Subjectivity of Hiring Criteria
As an additional argument that MDHS’s reason for hiring
Buchanan was pretext for discrimination, Cook contends that
MDHS’s hiring criteria were so subjective as to be inherently
suspect. In making this claim, Cook points to the interviewing
panel’s evaluations of Cook and Buchanan. The panel stated the
following regarding Cook:
1. Ms. Cook’s educational background was not
impressive;
2. Ms. Cook had no supervisory experience;5
3. Ms. Cook appeared to the interviewing panel to
have the preconceived notion that she was entitled
to the position by virtue of the fact that she had
worked in the Chickasaw office for fourteen years;
and
4. Her demeanor during the interview indicated to the
panel that she was not what MDHS was looking for
in a County Director.
In contrast, the panel noted that Buchanan:
1. Had an impressive background in work experience
and education;
2. Interviewed well, was articulate and enthusiastic,
and was well at ease;
3. Was not intimidated by the interview or demands of
the job;
5
Despite this assertion, Cook’s application for the Director
position stated that she had supervised four employees at a
convenience store.
18
4. Was confident he could meet the demands of the
job, fit what the panel was looking for, and
appeared to be client-oriented.
Cook contends these evaluations were almost wholly subjective and
that they allowed the panel to submit the three black candidates,
rather than the three best candidates (presumably including Cook)
to the governor for the final selection.
An employer’s reliance on wholly subjective criteria to make
employment decisions provides a ready mechanism for racial
discrimination. See Medina, 238 F.3d at 681 (employer may not
utilize wholly subjective criteria by which to evaluate employee
qualifications and then claim lack of qualification when the
process is challenged as discriminatory); Carroll v. Sears,
Roebuck & Co., 708 F.2d 183, 192 (5th Cir. 1983) (predominately
subjective promotional practices warrant strict scrutiny by the
courts). However, “[t]he mere fact that an employer uses
subjective criteria is not . . . sufficient evidence of pretext.”
Manning v. Chevron Chem. Co., 332 F.3d 874, 882 (5th Cir. 2003);
see also Page v. U.S. Indus., Inc., 726 F.2d 1038, 1046 (5th Cir.
1984).
Here, MDHS’s focus on largely subjective factors during its
interview process is not sufficient to raise a fact question as
to race discrimination. MDHS’s interviewing process permitted it
to meet with candidates, who all possessed competitive
qualifications, to determine which of them was the right “fit”
19
for the position. Cook did not present evidence that could show
she was a clearly better qualified candidate than Buchanan; and
MDHS’s consideration of subjective factors does not, of itself,
present a triable question of fact about whether its rationale
for hiring Buchanan was pretext for race discrimination.
III. CONCLUSION
In sum, the district court properly excluded the purported
statement of Senator Gordon as hearsay. And while the district
court applied the incorrect legal standard for making a prima
facie case of race discrimination, this error was harmless.
Finally, Cook failed to present sufficient evidence of pretext to
survive summary judgment. Accordingly, we AFFIRM entry of
summary judgment in favor of MDHS.
AFFIRMED.
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