*

The Honorable David M. Lawson, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0287p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SHAWN ALEXANDER,

 Plaintiff-Appellant,

v.

CARESOURCE,

 Defendant-Appellee.

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No. 08-3880

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 07-00198—Michael R. Merz, Magistrate Judge.

Argued: April 21, 2009

Decided and Filed: August 14, 2009 

Before: BATCHELDER and COLE, Circuit Judges; LAWSON, District Judge.*

_________________

COUNSEL

ARGUED: Kendall Duane Isaac, THE ISAAC FIRM, LLC, Columbus, Ohio, for

Appellant. Vladimir P. Belo, BRICKER & ECKLER LLP, Columbus, Ohio, for

Appellee. ON BRIEF: Kendall Duane Isaac, THE ISAAC FIRM, LLC, Columbus,

Ohio, for Appellant. Vladimir P. Belo, BRICKER & ECKLER LLP, Columbus, Ohio,

Mark R. Chilson, BRICKER & ECKLER LLP, West Chester, Ohio, for Appellee. 

_________________

OPINION

_________________

DAVID M. LAWSON, District Judge. The issue in this appeal of a grant of

summary judgment to the defendant in this employment discrimination action is whether

the plaintiff’s response in the district court was adequate to establish a material fact issue

1
No. 08-3880 Alexander v. CareSource Page 2

in proving her prima facie case. The district court found the plaintiff’s submissions

wanting, and we agree. In responding to the defendant’s motion for summary judgment,

the plaintiff failed to submit adequate evidence in the form required by Federal Rule of

Civil Procedure 56(e), and the other evidence in the record did not rebut the defendant’s

contention that it was entitled to judgment in its favor as a matter of law. Therefore, we

affirm the judgment of the district court.

I.

Plaintiff Shawn Alexander, an African American woman, applied for a job as a

claims analyst with defendant CareSource Management Group in 2005. Although she

was interviewed for the position, the defendant hired Caucasian applicants instead. The

plaintiff believes that race played a role in the defendant’s decision, as evidenced, she

alleges, by the more rigorous application and interview protocols demanded of the

plaintiff compared to the Caucasian applicants.

CareSource provides services for the administration of public sector health care

programs, operating Medicaid health plans in Indiana, Michigan, and Ohio. In 2005, the

claims department had approximately sixty employees and only two managers: Gary

North and Linda Hay. In May and June 2005, CareSource sought to fill two claims

analyst positions, one for Michigan and one for Ohio. Claims analysts are responsible

for analyzing and processing claims that have been rejected from an automatic electronic

processing system. North assumed responsibility for hiring the Michigan claims analyst,

and Hay was responsible for the Ohio position. Prospective candidates would interview

with human resources consultant Lara Bentley before meeting with North or Hay or

both, depending on their availability. Both internal and external candidates were

interviewed for the position, although, according to Bentley, the internal candidates were

not asked questions about their preference regarding management structure because

Bentley assumed they were already familiar with the management of the claims

department.

The plaintiff apparently learned about the job openings from her friend Claudette

Wheeler with whom she worked at Miami Valley Hospital. According to Lara Bentley’s
No. 08-3880 Alexander v. CareSource Page 3

affidavit, Wheeler was interviewed on June 3, 2005, after being referred to Bentley by

Charritye LeMoine, a CareSource claims department employee. Bentley says she

waived the requirement that Wheeler complete an employment application because

Wheeler was interviewing on her lunch break and therefore was under time constraints.

Wheeler interviewed with only Bentley and Hay because North was not in the office.

Bentley asked Wheeler about her preferred management style, and based on Wheeler’s

response Bentley concluded that Wheeler would thrive in a hands-off management

atmosphere like the one in the claims department. Wheeler was offered a position on the

same day as her interview, but declined the offer.

Alexander was interviewed for the open Michigan claims analyst position on

June 29, 2005. Bentley recalls Alexander stating that she “preferred well-organized

management and strong communication between herself and the department manager,”

which Bentley found incompatible with the management structure of the claims

department. Record on Appeal (“ROA”) at 60. Following this meeting, both North and

Hay interviewed Alexander, and both found that Alexander was “unable to provide

accurate and/or detailed responses to many questions asked.” ROA at 54. They noted

Alexander’s belief that the acronym “COB” referred to “Collaboration of Benefits”

rather than “Coordination of Benefits,” and her inability “to fully explain the COB

process.” ROA at 54-55. As a result of the interview, Hay and North concluded that

Alexander did not know enough about claims processing to work effectively as a claims

analyst. She was not offered the job. 

The Michigan claims analyst position ultimately went to Kim Seiber, who had

been employed by CareSource in a provider customer service position. Seiber,

apparently, is Caucasian. She interviewed for the position on June 28, 2005, the day

before Alexander. According to North, Seiber provided “satisfactory” answers to his

questions and he believed that she had received positive performance reviews in her

previous position. ROA at 54. 

On July 7, 2005, Bentley telephoned Alexander to inform her that the position

was given to another candidate. The following day, Alexander filed a charge of race
No. 08-3880 Alexander v. CareSource Page 4

discrimination with the Ohio Civil Rights Commission (OCRC) and the Equal

Employment Opportunity Commission (EEOC). On May 11, 2006, the Ohio Civil

Rights Commission concluded that there was probable cause to believe that CareSource

violated the law when it did not hire Alexander. The determination states that Alexander

met the job qualifications for the claims analyst position, and after she was refused the

job, CareSource continued to interview others “with very similar qualifications as

Charging Party.” ROA at 81. The report then stated:

On June 3, 2005, Respondent interviewed a Caucasian applicant for

Claims Analyst. Unlike Charging Party, this similarly situated person

was not required to submit an employment application, and was offered

a position the same day she was interviewed by Respondent. Charging

party became aware of these facts only because she worked alongside

this person during Respondent’s interview process.

Ibid. On May 2, 2007, citing the Ohio Civil Rights Commission’s finding, the EEOC

issued a determination that there was probable cause to believe that the allegation of race

discrimination was true; but on May 9, 2007, the EEOC issued a correction, stating that

the May 2, 2007 document was “null and void, and of no legal significance.” ROA at

15. The EEOC issued a right-to-sue letter that same day.

On May 24, 2007, Alexander filed a pro se complaint in the United States

District Court for the Southern District of Ohio. She was granted in forma pauperis

status. The complaint – which is not verified – states that she believes she was

“unlawfully discriminated against because of my race, African American.” ROA at 9.

Attached to the complaint is the charge of discrimination filed by the plaintiff with the

OCRC and the EEOC. In this charge, which was notarized and signed under penalty of

perjury, Alexander states that she is an African American, the position at CareSource

was offered to Wheeler, a Caucasian, and Wheeler’s interview was less rigorous than

Alexander’s because Wheeler was asked less difficult questions. Counsel entered an

appearance on behalf of Alexander on July 12, 2007 but did not file an amended

complaint. The parties consented to plenary jurisdiction over the case by United States

Magistrate Judge Michael Merz under 28 U.S.C. § 636(c).
No. 08-3880 Alexander v. CareSource Page 5

Alexander took at least two depositions in the case, but it does not appear that she

sought formal discovery in any other form. CareSource moved for summary judgment,

attaching three affidavits, one with “interview notes” of the candidates. Alexander

responded, attaching various documents, including the letters from the OCRC and the

EEOC, and portions of depositions of CareSource’s employees. Alexander never

submitted an affidavit to the district court, nor any pages of her deposition transcript.

She did, however, submit a document purporting to be her resume. The resume states

that she has a high school education, and worked as a data processing clerk from 1988

to 1994. From 1994 to 2003, she worked as a claims processor for Anthem Blue Cross

and Blue Shield. From 2003 to 2006 she worked for Miami Valley Hospital as a patient

account representative. According to her complaint, she was laid off by the hospital in

2006 and was forced to live in a homeless shelter.

Alexander also submitted a document that purports to be a resume of David

Roush. It appears that Roush had worked since 2000 as a claims analyst for Anthem

Blue Cross Blue Shield. Before that he worked in various customer service jobs since

1980. According to Alexander’s brief, Roush was hired for a claims analyst position

covering Indiana, he did not have a completed application on file, and he is Caucasian.

CareSource responded to the plaintiff’s submissions by asking the district court

to strike all of Alexander’s exhibits except the deposition transcripts because they were

not authenticated by an affidavit or deposition testimony. The district court granted the

motion to strike the exhibits as well as the motion for summary judgment, and entered

judgment against Alexander on June 3, 2008. Alexander filed a timely notice of appeal

and contends that the district court erred by granting summary judgment and

disregarding her exhibits.

II.

This court reviews a district court’s grant of summary judgment de novo and

applies the same standard as the district court. Farhat v. Jopke, 370 F.3d 580, 587 (6th

Cir. 2004); Lake v. Metro. Life Ins. Co., 73 F.3d 1372, 1376 (6th Cir. 1996). The parties’

arguments in this case suggest that it may be useful to review those standards once again.
No. 08-3880 Alexander v. CareSource Page 6

Both claimants and parties defending against a claim may move for summary

judgment “with or without supporting affidavits.” Fed. R. Civ. P. 56(a), (b). Such a

motion presumes the absence of a genuine issue of material fact for trial. The court must

view the evidence and draw all reasonable inferences in favor of the non-moving party,

and determine “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party

bringing the summary judgment motion has the initial burden of informing the district

court of the basis for its motion and identifying portions of the record that demonstrate

the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home,

Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). Once that occurs, the

party opposing the motion then may not “rely on the hope that the trier of fact will

disbelieve the movant’s denial of a disputed fact” but must make an affirmative showing

with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886

F.2d 1472, 1479 (6th Cir. 1989). 

Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment

opponent to make her case with a showing of facts that can be established by evidence

that will be admissible at trial. Fed. R. Civ. P. 56(e)(2) (“When a motion for summary

judgment is properly made and supported, an opposing party may not rely merely on

allegations or denials in its own pleading; rather, its response must – by affidavits or as

otherwise provided in this rule – set out specific facts showing a genuine issue for

trial.”). In fact, “[t]he failure to present any evidence to counter a well-supported motion

for summary judgment alone is grounds for granting the motion.” Everson v. Leis, 556

F.3d 484, 496 (6th Cir. 2009) (citing Skousen v. Brighton High School, 305 F.3d 520,

528 (6th Cir. 2002)). Rule 56(e) identifies affidavits, depositions, and answers to

interrogatories as appropriate items that may be used to support or oppose summary

judgment. See Fed. R. Civ. P. 56(e).

 The submissions by a party opposing a motion for summary judgment need not

themselves be in a form that is admissible at trial. Celotex Corp. v. Catrett, 477 U.S.
No. 08-3880 Alexander v. CareSource Page 7

317, 324 (1986) (“We do not mean that the nonmoving party must produce evidence in

a form that would be admissible at trial in order to avoid summary judgment.”).

Otherwise, affidavits themselves, albeit made on personal knowledge of the affiant, may

not suffice, since they are out-of-court statements and might not be admissible at trial.

See Fed. R. Evid. 801(c), 802. However, the party opposing summary judgment must

show that she can make good on the promise of the pleadings by laying out enough

evidence that will be admissible at trial to demonstrate that a genuine issue on a material

fact exists, and that a trial is necessary. Such “‘evidence submitted in opposition to a

motion for summary judgment must be admissible.’” Alpert v. United States, 481 F.3d

404, 409 (6th Cir. 2007) (quoting United States Structures, Inc. v. J.P. Structures, Inc.,

130 F.3d 1185, 1189 (6th Cir. 1997)). That is why “‘[h]earsay evidence . . . must be

disregarded.’” Ibid.; see also North American Specialty Ins. Co. v. Myers, 111 F.3d

1273, 1283 (6th Cir. 1997) (“[T]he testimony of Chaffee is inadmissible hearsay and

therefore cannot defeat a motion for summary judgment.”). It is also the basis of this

court’s repeated emphasis that unauthenticated documents do not meet the requirements

of Rule 56(e). Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 532 n.

5 (6th Cir. 2002); see also Meals v. City of Memphis, Tenn., 493 F.3d 720, 728-29 (6th

Cir. 2007); Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) (“This court has ruled

that documents submitted in support of a motion for summary judgment must satisfy the

requirements of Rule 56(e); otherwise, they must be disregarded.” (citing Dole v. Elliott

Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991), and State Mutual Life

Assurance Co. of America v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir. 1979))).

The dispute in this case focused on whether the plaintiff’s race played any role

in the defendant’s decision not to hire her. She never contended that there was any

direct evidence of that motivation, so the district court used the familiar McDonnell

Douglas burden-shifting methodology to determine whether the plaintiff could establish

by circumstantial evidence that race was a motive in the defendant’s refusal of

employment. Under the McDonnell Douglas approach, “(1) the plaintiff must establish

a prima facie case of racial discrimination; (2) the employer must articulate some

legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff must prove that
No. 08-3880 Alexander v. CareSource Page 8

the stated reason was in fact pretextual.” Dunlap v. Tennessee Valley Authority, 519

F.3d 626, 630 (6th Cir. 2008) (citing Harrison v. Metro. Gov’t of Nashville and

Davidson County, 80 F.3d 1107, 1115 (6th Cir. 1996)). 

A plaintiff can establish a prima facie case by showing that “(1) she was a

member of a protected class; (2) she applied for and was qualified for the position . . . ;

(3) she was considered for and denied the position; and (4) she was rejected in favor of

another person with similar qualifications who was not a member of her protected class.”

Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1095 (6th Cir. 1996) (citing Brown v.

Tennessee, 693 F.2d 600, 603 (6th Cir. 1982)). CareSource argued in the district court

that Alexander was not qualified for the position and that there was no other similarlysituated person outside the protected class who was treated differently than she was. In

support of its motion, CareSource filed affidavits by its employees, Linda Hay, Gary

North, and Lara Bentley. Those witnesses described the sequence of events that led to

the interviews of the plaintiff and others, the qualifications that were important to them,

how they determined to evaluate those qualifications, and the reasons they decided to

hire the successful applicants rather than the plaintiff. They also provided a rationale for

the differences in the interview processes and some of the questions asked, attributing

those differences to prior familiarity with some of the job applicants, while the plaintiff

was a stranger to them. 

 In response to the motion, the plaintiff filed a memorandum that included as

attachments an e-mail printout from a co-worker to Claudette Wheeler, the plaintiff’s

handwritten notes, a typed paragraph of undetermined origin, CareSource’s job

description of the open positions, letters from the OCRC and the EEOC, resumes of the

plaintiff and another individual, and excerpts from two depositions taken in the case.

Based on those items, the plaintiff argued that she proved that she was qualified for the

position, she was treated differently during the interview process than other individuals,

and the persons who were hired for the claims analyst positions were not as qualified as

she.
No. 08-3880 Alexander v. CareSource Page 9

Sworn statements

The record contains two types of sworn statements submitted by the plaintiff.

One was a copy of the verified charge she submitted to the EEOC and OCRC. That

document stated that the plaintiff is a member of a protected class (African American);

she believes she is qualified for the position of claims analyst, although the statement is

conclusory and contains no supporting facts; she interviewed for that position;

CareSource offered the job to Claudette Wheeler, who did not fill out an application; the

plaintiff was required to fill out an application; and the plaintiff “was asked more

difficult questions than Ms. Wheeler, ie [sic] multiple problem solving questions.” ROA

at 13. This document establishes the plaintiff’s protected class status and the difference

in treatment she received compared to Ms. Wheeler’s experience, but it does not amount

to evidence that the plaintiff is qualified for the position. Conclusory statements

unadorned with supporting facts are insufficient to establish a factual dispute that will

defeat summary judgment. Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.

2004) (finding that “conclusory statements” unsupported by specific facts will not permit

a party to survive summary judgment); Doren v. Battle Creek Health System, 187 F.3d

595, 598 -599 (6th Cir. 1999) (holding that affidavits that contained no “specific facts”

but “are merely conclusory, restating the requirements of the law . . . therefore cannot

create a genuine issue of material fact sufficient to defeat summary judgment”).

The second type of sworn statement was deposition testimony. Rule 56(c) makes

specific reference to the discovery materials “on file.” The plaintiff did not file the

entire transcript of the depositions of Lara Bentley or Gary North; she did submit

excerpts of those depositions. We do not read Rule 56(c) to prohibit filing only part of

a deposition. Excerpts of depositions are allowed – and many times preferred by the

district court – if they are properly authenticated. See Pfeil v. Rogers, 757 F.2d 850,

859-60 (7th Cir. 1985) (“We fail to understand why the district court refused to consider

the deposition excerpts contained in the affidavits since the affidavits were sworn

statements of recited testimony excerpted from certified depositions that had been filed

with the district court and complied with the Rule 56(e) requirement that ‘certified
No. 08-3880 Alexander v. CareSource Page 10

copies of all papers . . . referred to in an affidavit shall be . . . served therewith.’”). To

authenticate a deposition excerpt, a party should include the cover sheet (which the

plaintiff did) and the court reporter’s certificate (which the plaintiff failed to do). Orr

v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (“A deposition or an

extract therefrom is authenticated in a motion for summary judgment when it identifies

the names of the deponent and the action and includes the reporter's certification that the

deposition is a true record of the testimony of the deponent.”) (citing Fed. R. Evid.

901(b)); Moore’s Federal Practice § 56.14[2][a] (observing that “one proper cover page

and certification will suffice for authentication of the excerpts from that deposition”).

The defendant takes no issue with the deposition excerpts’ authenticity, however, so we

will consider them, as did the district court.

The deposition excerpts in this case do little to establish a factual dispute on the

questions whether the plaintiff was qualified for the position and a non-class member

treated more favorably was similarly situated to the plaintiff. Gary North testified that

he did not remember interviewing one of the applicants, he knew Claudette Wheeler and

was familiar with her work, lack of knowledge of the claim-processing software was not

disqualifying for an applicant, the plaintiff may have been the only candidate from

outside the company that was interviewed, and the plaintiff was unfamiliar with several

terms a claims analyst must know to perform the job. Lara Bentley testified that she

believed the plaintiff would not have been a good fit because of her preferred

management style and lack of technical skills. The deposition excerpts did not establish

a genuine dispute on a material fact. 

Non-sworn documents

The district court did not consider many of the other documents attached to the

plaintiff’s response because they were not authenticated or otherwise were inadmissible

in evidence. As noted earlier, because the defendant objected, it would have been

improper for the district court to consider documents that were not admissible in

evidence. Moore, 2 F.3d at 699. Charritye LeMoine’s e-mail, the hand-written notes,

the unidentified typed paragraph, the plaintiff’s and David Roush’s resumes, and the
No. 08-3880 Alexander v. CareSource Page 11

annotated resume of Jennifer Reibert were not authenticated, and the plaintiff has made

no argument suggesting a ground under which they might be admissible. The job

description was generated on CareSource’s letterhead. That document contains a trade

inscription indicating the source of origin of the document, and it is self-authenticated

under Federal Rule of Evidence 902(7). See Pass & Seymour, Inc. v. Hubbell Inc., 532

F. Supp. 2d 418, 438 (N.D.N.Y. 2007) (finding that self-promoting materials that contain

a company logo are self-authenticating); Milton H. Greene Archives, Inc. v. BPI

Communications, Inc., 378 F. Supp. 2d 1189, 1195 n.3 (C.D. Cal. 2005) (concluding that

advertising campaign books “are also self-authenticating as items bearing trade

inscriptions”) (citing Fed. R. Evid. 902(7)). However, the job description contains only

a list of minimum qualifications. The plaintiff never offered admissible evidence that

she met those qualifications, and the document provides her with no help on the question

whether she was similarly situated with the successful applicants.

EEOC and OCRC reports

The plaintiff relies heavily on the reports of the administrative agencies finding

probable cause that discrimination had occurred. The determination by the Ohio Civil

Rights Commission is signed by a team leader and contains the Seal of the State of Ohio.

The EEOC letter dated May 2, 2007 is signed by the district director and contains the

agency’s seal. Both of those documents are self-authenticated under Federal Rule of

Evidence 902(1). See United States v. Rigsby, 943 F.2d 631, 638-39 (6th Cir. 1991).

The EEOC letter, however, was withdrawn by that agency and declared “null and void”

in a letter issued one week later, signed by the same district director.

The OCRC determination was offered for its truth, and therefore amounts to

hearsay as defined by Rule 801(c), but it conceivably was admissible under Federal Rule

of Evidence 803(8), which states:

Records, reports, statements, or data compilations, in any form, of public

offices or agencies, setting forth . . . (C) in civil actions and proceedings

and against the Government in criminal cases, factual findings resulting

from an investigation made pursuant to authority granted by law, unless
No. 08-3880 Alexander v. CareSource Page 12

the sources of information or other circumstances indicate lack of

trustworthiness.

Fed. R. Evid. 803(8). The OCRC letter contains a recitation of facts that tracks closely

the events documented in the affidavits submitted by the defendant: that the plaintiff was

required to fill out a job application, but a Caucasian applicant who was offered the

position the same day as the interview was not. The letter also contains conclusions

beyond mere factual findings. However, the Supreme Court has held that a report that

contains the agency’s conclusion or opinion formed as the result of a factual

investigation is admissible under this rule. Beech Aircraft Corp. v. Rainey, 488 U.S.

153, 170 (1988); see also Bank of Lexington & Trust Co. v. Vining-Sparks Securities,

Inc., 959 F.2d 606, 616 (6th Cir. 1992) (“Opinions, conclusions, and evaluations, as well

as facts, fall within the Rule 803(8)(C) exception.”). Moreover, the Supreme Court,

citing Rule 803(8), has observed that “[p]rior administrative findings made with respect

to an employment discrimination claim may, of course, be admitted as evidence at a

federal-sector trial de novo.” Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976).

The OCRC letter concludes with a finding of probable cause that unlawful

discrimination occurred. The district court gave no evidentiary weight to that finding

for several reasons. We do not agree with all of them, but we do concur that the letter

does not establish a material fact question. The district court first cited this court’s

unpublished opinion in E.E.O.C. v. Ford Motor Co., 98 F.3d 1341, 1996 WL 557800

(6th Cir. 1996) (table), which authorized district courts to adopt a blanket rule refusing

the admission of EEOC probable cause determinations at trial. In Ford Motor Co., the

court noted that “an EEOC cause determination carries an evidentiary value of

practically zero,” and that “the only plausible value of an EEOC cause determination

would be that it presents the evidence of discrimination that the EEOC considered.” 

1996 WL 557800 at *10. Certainly there are reasons for excluding a probable cause

determination at trial. See Cortes v. Maxus Exploration Co., 977 F.2d 195, 201-02 (5th

Cir. 1992) (recognizing that the district court has “discretion under Rule 403 to exclude

such reports if their probative value is substantially outweighed by prejudicial effect or

other considerations enumerated in the rule”); Ford Motor Co., 1996 WL 557800 at *10
No. 08-3880 Alexander v. CareSource Page 13

(noting that an EEOC report may contain evidence “that is properly excluded at trial,”

and that “an attempt by the EEOC to admit those parts of the EEOC cause determination

becomes a not-too-subtle attempt to end-run the Federal Rules of Evidence”). However,

at the summary judgment stage, the report ought to be considered for the factual material

it contains to determine if a fact question is raised.

The district court also discounted the letter because it was not made on personal

knowledge, citing Fed. R. Civ. P. 56(e). Rule 56(e) requires affidavits to be made on

personal knowledge. And as a general rule, a hearsay “declarant is, of course, a witness,

and neither [Rule 803] nor Rule 804 dispenses with the requirement of firsthand

knowledge.” Advisory Committee’s Note to 1972 Proposed Rules, Rule 803; see also

United States v. Lanci, 669 F.2d 391, 395 (6th Cir. 1982) (quoting advisory committee

note and holding that hearsay exception of statement against interest requires that the

declarant had personal knowledge); cf. Fed. R. Evid. 602. But the personal knowledge

requirement does not extend to official reports admissible under Rule 803(8). Combs

v. Wilkinson, 315 F.3d 548, 555-56 (6th Cir. 2002) (rejecting argument that an official

report of a prison disturbance must be based on first-hand knowledge of investigating

committee, which “based its report on 123 interviews and numerous documents,

including all staff and inmate incident reports, as well as the investigative report

completed by the Ohio Highway State Patrol”). In fact, it is unlikely that the report’s

author(s) will have any personal knowledge of the incidents investigated. Therefore,

lack of personal knowledge is not a proper basis for exclusion of a report otherwise

admissible under Rule 803(8). Exclusion of an official report is warranted only if the

court finds that “the sources of information or other circumstances indicate lack of

trustworthiness.” Fed. R. Evid. 803(8); see also 2 McCormick On Evid. § 296 (6th ed.)

(“As the name indicates, these reports embody the results of investigation and

accordingly are often not the product of the declarant’s firsthand knowledge, required

under most hearsay exceptions. Nevertheless, the nature and trustworthiness of the

information relied upon, including its hearsay nature, is important in determining the

admissibility of the report.” (footnotes omitted)).
No. 08-3880 Alexander v. CareSource Page 14

Another reason the district court concluded that the letter was entitled to little

weight is that the conclusions were not tied to specific facts, and it was unclear what

evidence the investigator considered in reaching her conclusion. We believe that is a

valid reason for finding that the OCRC letter does not support the plaintiff’s prima facie

case, because it assesses the circumstances relating to the trustworthiness of the report.

Several courts have held that the EEOC’s opinion that there is reasonable cause to

believe discrimination occurred or did not occur is excepted from hearsay under Rule

803(8), unless there is an indication of a lack of trustworthiness. Coleman v. Home

Depot, Inc., 306 F.3d 1333, 1342-43 (3d Cir. 2002); Paolitto v. John Brown E. & C.,

Inc., 151 F.3d 60, 64 (2d Cir. 1998); Cortes, 977 F.2d at 201; Barfield v. Orange County,

911 F.2d 644, 649 (11th Cir. 1990); Johnson v. Yellow Freight System, Inc., 734 F.2d

1304, 1309 (8th Cir. 1984). In this Circuit, “[t]o determine whether a report is

trustworthy, courts consider the following four factors: (1) the timeliness of the

investigation upon which the report is based, (2) the special skill or experience of the

investigators, (3) whether the agency held a hearing, and (4) possible motivational

problems.” Chavez v. Carranza, 559 F.3d 486, 496 (6th Cir. 2009) (citing Bank of

Lexington, 959 F.2d at 616-17). “This list of factors is not exclusive; any circumstance

which may affect the trustworthiness of the underlying information, and thus, the

trustworthiness of the findings, must be considered when ruling upon the admissibility

of factual findings under this rule.” In re Complaint of Paducah Towing Co., Inc., 692

F.2d 412, 420 (6th Cir. 1982) (citations omitted). 

“The trustworthiness of a factual finding is often a function of the trustworthiness

of the information upon which the finding is based.” Ibid. (citations omitted). In this

case, there was no agency “hearing,” the investigation lingered for over a year before the

report was completed, and there is no information in the record as to the evidence

available to the agency. It appears, however, the district court considered at least all of

the same evidence examined by the OCRC team leader and arrived at its own

conclusion. Because the lower court considered the same facts as the agency, the

differing conclusion in the agency report does not by itself establish a material issue of
No. 08-3880 Alexander v. CareSource Page 15

fact, and there is no error by the district court in not assigning evidentiary weight to that

conclusion.

On de novo review of the summary judgment determination, we reach the same

result. There is scant evidence that the plaintiff was qualified for the job. “The prima

facie burden of showing that a plaintiff is qualified can . . . be met by presenting credible

evidence that his or her qualifications are at least equivalent to the minimum objective

criteria required for employment in the relevant field.” Wexler v. White’s Fine

Furniture, Inc., 317 F.3d 564, 575-76 (6th Cir. 2003) (en banc). This rule focuses the

Court’s inquiry on the “plaintiff’s education, experience in the relevant industry, and

demonstrated possession of the required general skills.” Ibid. CareSource’s job

description amounts to evidence of the minimum job qualifications. There is no

evidence as to what Alexander’s qualifications for the position were, other than her

unauthenticated resume. However, CareSource “identified [Alexander] as a potential

candidate,” ROA at 60, selecting her for an interview. This is extremely weak evidence,

but it would allow a fact finder to infer that the plaintiff met the minimum job

qualifications. 

To prove that she was treated differently than similarly-situated individuals

outside the protected class, the plaintiff compares herself to Wheeler and Roush, who

were offered claims analyst positions for Ohio and Indiana, respectively. She argues that

both of these individuals applied for a claims analyst position with CareSource

contemporaneously with her application, so they must be similarly situated. Yet the

“assertion that she satisfies her prima facie burden because she is similarly situated to

[other candidates] by virtue of the fact that they applied for the same position and their

applications were reviewed by the same committee fundamentally misconceives the

concept of the fourth prong of the prima facie requirement.” White v. Columbus Metro.

Housing Auth., 429 F.3d 232, 241-42 (6th Cir. 2005). 

CareSource argues that different, less satisfying answers during her interview

render Alexander dissimilar to the other candidates. However, subjective impressions

from an interview do not provide a valid basis for finding dissimilarity. See id. at 242
No. 08-3880 Alexander v. CareSource Page 16

n. 6 (stating that “subjective traits or other details about why the non-protected person

was in fact selected over the plaintiff” are not appropriate considerations at the prima

facie stage of the analysis). CareSource also argues that Alexander is not similarly

situated to the other candidates because she was only considered for the Michigan

position, while Wheeler and Roush were offered claims analyst positions covering

different states. But the fact that the alleged comparator was hired for a different

position does not automatically defeat a plaintiff’s claims. See Clay v. United Parcel

Service, Inc., 501 F.3d 695, 705 (6th Cir. 2007). The only difference between the

positions offered to Wheeler, Roush, and applied for by Alexander, appears to be the

region from where the claims will be processed. There is no indication in the record that

the positions were otherwise different in any way, and that the qualifications sufficient

for one are different for another.

Missing from the record, however, is any evidence that Alexander’s

qualifications are comparable to those of Wheeler or Roush. Alexander’s work history

of claims processing only appears through her unsworn resume. The same is true for

Roush. Nor is there any properly submitted evidence of Wheeler’s qualifications. There

is no evidence from which a reasonable jury could conclude that Alexander is similarly

situated to either identified comparator, Wheeler or Roush. 

But even if we were to conclude that the plaintiff established a prima facie case,

“she has failed to produce any evidence that [CareSource’s] decision was mere pretext.”

Ladd v. Grand Trunk Western R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009). CareSource

identified the reasons it treated Wheeler and the plaintiff differently and why it chose

applicants other than the plaintiff. It filed affidavits establishing that Alexander was not

hired based on the answers she provided in her interview, which demonstrated a lack of

knowledge for a position the employer sought to fill with someone who needed minimal

training or adjustment. The defendant explained why it did not require Wheeler to fill

out an employment application. CareSource made known its interest in in-house

applicants over outsiders. It justified its less rigorous questioning of applicants who

were known to the interviewers based on prior knowledge, which obviated questions that
No. 08-3880 Alexander v. CareSource Page 17

would have elicited information the interviewers already knew. And it explained that

it sought an applicant with a management style preference that was congruent with

existing company practice. These explanations are legitimate, non-discriminatory

reasons that shift the burden back to Alexander. White v. Baxter Healthcare Corp., 533

F.3d 381, 392 (6th Cir. 2008) (quoting Texas Dept. of Comm. Affairs v. Burdine, 450

U.S. 248, 257-58 (1981)); Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 616

(6th Cir. 2003). Alexander has provided no evidence to contradict the affidavits

submitted by CareSource regarding her interview answers. That failure of proof is fatal

to her claim. See Hartsel v. Keys, 87 F.3d 795, 802 (6th Cir. 1996). 

III.

The district court properly concluded that the plaintiff failed to come forward

with admissible evidence from which a jury could conclude that race was a factor in the

defendant’s decision not to hire her for one of the claims analyst positions it sought to

fill. The summary judgment of the district court, therefore, is AFFIRMED.