Cook v. Mississippi Department of Human Services

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that this opinion should not be published and is not precedent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.

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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.

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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

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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,

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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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