NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0688n.06

No. 10-3110

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES E. KIMBLE,

Plaintiff-Appellant,

v.

MARK WASYLYSHYN, individually and in

his official capacity as Sheriff of Wood

County; BOARD OF WOOD COUNTY

COMMISSIONERS; JIM CARTER; TIM

BROWN; ALVIN PERKINS, in their official

capacity as Commissioners of Wood County,

Ohio, Board of Wood CountyCommissioners,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OHIO

Before: SUTTON and COOK, Circuit Judges; GREER, District Judge.*

COOK, Circuit Judge. Wood CountyDeputy James Kimble appeals the district court’s grant

of summary judgment to the defendants in this employment-based racial-discrimination action. 

Because we conclude that Kimble presented sufficient circumstantial evidence from which a

reasonable jury could find the defendants’ proffered hiring rationale pretextual, we reverse the

district court’s judgment and remand the case for trial.

The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of *

Tennessee, sitting by designation.
No. 10-3110

Kimble v. Wasylyshyn

I.

This dispute arises from allegations that the Wood County Sheriff’s Office (the “Office”)

racially discriminated against Kimble, an African American, when considering candidates for an

internal promotion. The current County Sheriff, Mark Wasylyshyn, assumed his role in January

2005. Per Wasylyshyn’s own testimony, upon taking office, he and his Chief Deputy, Eric Reynolds,

sought to overhaul many of his predecessor’s management policies. Of particular relevance,

Wasylyshyn states that he intended to take a more aggressive stance on enforcement activities (e.g.,

writing tickets and making arrests) and implement more formalized hiring procedures.

Eighteen months into Wasylyshyn’s term, Sergeant Bill Frankart of the Office’s Road Patrol

Division announced his earlyretirement,therebycreating an opening for an Environmental Sergeant. 

The Environmental Sergeant’s dutiesincluded enforcing solid-waste laws, inspecting junkyards, and

supervising the deputy in charge of the inmate litter-control crew. Prior to his departure, Frankart,

who employed Kimble part-time in his recycling business, met with Chief Deputy Reynolds to

discuss potential replacements. At that time, Kimble had worked in the Office nearly seventeen

years—having spent the last nine as a Road Patrol Deputy—and expressed interest in the position. 

Frankart thus told Reynolds about Kimble, stating that he would “make an excellent choice”;

Reynolds, however, responded with “something to the effect that he didn’t think so.”

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Reynolds officially posted the Environmental Sergeant opening at the end of August, but

restricted it to current sergeants, none of whom was African American. Shortly after Reynolds 1

announced the opening, Wasylyshyn approached Sergeant Jim Shank and encouraged him to apply. 

Shank refused for personal reasons, but also recommended Kimble—whom he had overseen on road

patrol—for the position, since Kimble was trained in litter enforcement. Though Shank assured

Wasylyshyn that he “really never had any problems with [Kimble],” the Sheriff stated that “he really

didn’t want [him] to have that position,” and preferred somebodywho would “go out and write some

tickets.” 

When the posting period closed without any submissions, Reynolds extended the deadline

and opened the position to deputies. He included several requirements in the job description: (1)

at least five years’ road-patrol experience; (2) a valid commercial driver’s license, to be obtained

within six months of receiving the position; (3) flexible days and hours; (4) record-keeping and

statistic-development abilities; (5) computer experience; (6) public-speaking ability; and (7) no

recent disciplinary issues. Deputy Kimble, who had the requisite experience and a commercial

driver’s license and considered himself otherwise qualified, applied for the position the first day it

opened to him.

The Office employs two African Americans among its roughly 122-member workforce: 1

Deputy Kimble and another individual, a corrections officer. This 2-in-122 figure closely mirrors

the demographics of Wood County as a whole. 

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Kimble v. Wasylyshyn

Also during this second posting period, the Office’s Human Resources Representative, 

Joneal Bender, solicited applications from three deputies who passed through her office, even though

none expressed interest in the position. In one instance, the would-be applicant, DeputyTom Otley,

told Bender that he lacked road-patrol experience and computer skills—both stated requirements for

the position. Bender offered to draft a letter of interest for Otley and later did so, even though Otley

expressed doubt about signing the letter and provided no input on the letter’s content. After their

conversation, Bender escorted OtleytoReynolds’s office to discuss the position further. When Otley

again explained his shortcomings, Reynolds assured him that he was “the most qualified for the job,”

and offered to “help” him with his deficiencies. Despite this generous assistance, Otley, like the

other two deputies Bender approached, ultimately declined to apply.

On the posting period’s final day, Deputy Rodney Konrad, an eight-year veteran with the

Office, submitted a letter of interest to Bender. Prior to applying, however, Konrad met with

Reynolds to discuss his application because he realized he lacked a few months of the required roadpatrol experience. After talking to Konrad, Reynolds presented the matter to Wasylyshyn, who

decided to waive the requirement for him. At that point Reynolds encouraged Konrad “to go ahead

and apply anyway.” 

When the posting period ended, Konrad and Kimble were the onlyapplicantsforthe position. 

The Office scheduled interviews for early November and then compiled a five-member interview

panel consisting of Ms. Bender, Chief Deputy Reynolds, Road Patrol Division Lieutenant William

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Kimble v. Wasylyshyn

Ervin, and two individuals from the County Government—County Administrator Andrew Kalmar

and Solid Waste Management District Director Ken Rieman.

During the interviews, the panel asked Kimble and Konrad the same set of prepared

questions. Each member took notes and scored the candidates according to a ten-category grading

sheet that Wasylyshyn had prepared. After the question-and-answer session, the panel rated the

candidates quite closely: in aggregate, Konrad received 200.5 points; Kimble received 194. Before

discussing scores or recommendations, however, Reynolds distributed Law Enforcement Activity

Reports (“LEARs”), detailing the two deputies’ respective year-to-date citation and arrest statistics. 

Although enforcement rates were not among the selection criteria in the job posting, Bender

requested that a lieutenant in the Road Patrol Division run the LEARs several weeks in advance, in

preparation for the interviews. The reports showed that Konrad had issued more citations and made

more arrests than Kimble. Reynolds then emphasized that high activity and enforcement levels were

“the direction the sheriff wants.” Upon receiving this new information, the panel took two votes:

it voted three-to-two to recommend Kimble if Wasylyshyn “liked the program just the way it was,”

and four-to-one to recommend Konrad if Wasylyshyn “wanted to take a more strict law enforcement

approach.” Bender prepared a memo for Wasylyshyn explaining the panel’s recommendations. 

Within days, the Sheriff announced to the Office that he was promoting Konrad; Konrad assumed

the position a month later. 

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Kimble v. Wasylyshyn

In April 2007, Kimble filed a complaint with the Ohio Civil Rights Commission (the

“OCRC”) alleging racial discrimination. After speaking with each member of the interview panel,

the OCRC issued a determination letter finding “probable cause” for discrimination. A few months

later, Kimble initiated this suit in the U.S. District Court for the Northern District of Ohio, claiming

violations of (1) Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e–2000e-17; (2) 42 U.S.C.

§ 1981; and (3) the Ohio Civil Rights Act, Ohio Rev. Code §§ 4112.01–4112.99. The defendants

moved for summary judgment, which the district court granted following a hearing. Kimble v.

Wasylyshyn, 687 F. Supp. 2d 703, 710–11 (N.D. Ohio 2009). In its memorandum opinion and order,

the court concluded that although Kimble established a prima facie case of racial discrimination, he

failed to show that the defendants’ proffered reasoning for the hiring selection was pretextual. Id. 

Kimble appeals.

II. Analysis

A. Applicable Legal Framework

We review de novo a district court’s grant of summary judgment. Ciminillo v. Streicher, 434

F.3d 461, 464 (6th Cir. 2006). Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). Once the moving party meets its initial burden, the nonmovant must

“designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986) (internal quotation marks and citation omitted). “Where the record taken

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Kimble v. Wasylyshyn

as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citation omitted). But in making our determination, we may not “weigh the evidence and determine

the truth of [any disputed] matter,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); we

must instead view the facts in the record and all inferences that can be drawn therefrom in the light

most favorable to the nonmoving party, Matsushita, 475 U.S. at 587–88.

The same legal analysis applies to all of Kimble’s claims, regardless of whether they arise

under Title VII, § 1981, or the Ohio Civil Rights Act. See Hollins v. Atl. Co., 188 F.3d 652, 658 (6th

Cir. 1999). Because Kimble presents circumstantial (rather than direct) evidence of discrimination,

we review his case under the McDonnell Douglas burden-shifting scheme. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–05 (1973); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 252–56 (1981) (expounding upon McDonnell Douglas).

The parties concede that Kimble established a prima facie case of racial discrimination. See,

e.g., Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 391 (6th Cir. 2009). Sheriff Wasylyshyn

accordingly provided three legitimate, nondiscriminatory reasons for the hiring decision: (1) he

preferred candidates with high activity, initiative, and self-motivation; (2) he sought the most

qualified applicant for the position; and (3) he wished to focus on greater enforcement within the

division. Under McDonnell Douglas, Kimble must now show that Appellees’ proffered reasons are

pretextual by providing “sufficient evidence from which the jury [could] reasonably reject the

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Kimble v. Wasylyshyn

employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.

1994), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009),

as recognized in Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009). A plaintiff may meet

this burden either “by persuading the court that a discriminatory reason more likely motivated the

employer,” or “by showing that the employer’s proffered explanation is unworthy of credence.” 

Burdine, 450 U.S. at 256. But in either case, he must do so by producing additional evidence rather

than mere conjecture. Manzer, 29 F.3d at 1084.

Kimble responds indirectly, by offering various items of circumstantial evidence in an

attempt to refute Appellees’ purported hiring rationale. In this instance, a jury may “infer the

ultimate fact of discrimination from the falsity of the employer’s explanation.” Reeves v. Sanderson

Plumbing Prods., 530 U.S. 133, 147 (2000). As the Court explained,

[p]roof that the defendant’s explanation is unworthy of credence is simply one form

of circumstantial evidence that is probative of intentional discrimination, and it may

be quite persuasive. In appropriate circumstances, the trier of fact can reasonably

infer from the falsity of the explanation that the employer is dissembling to cover up

a discriminatory purpose. Such an inference is consistent with the general principle

of evidence law that the factfinder is entitled to consider a party’s dishonesty about

a material fact as “affirmative evidence of guilt.” Moreover, once the employer’s

justification has been eliminated, discrimination may well be the most likely

alternative explanation, especially since the employer is in the best position to put

forth the actual reason for its decision.

Id. at 147 (citation omitted). Our question thus becomes whether Kimble’s prima facie case and

circumstantial evidence could lead a reasonable jury—if it accepts his factual allegations as true and

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draws all inferences therefrom in his favor—to reject Appellees’ proffered hiring rationale, thus

permitting an inference that discriminatory intent truly motivated the decision. We believe that

Kimble meets this burden.

B. Kimble’s Circumstantial Evidence

In his brief, Kimble highlights several facts that he believes call into question Appellees’

articulated hiring rationale and instead reveal their true, discriminatory motive. Upon reviewing

these assertions, we discuss his strongest arguments below.2

1. Kimble was “pre-rejected.”

First, Kimble argues that Wasylyshyn and Reynolds summarily rejected his candidacy based

upon his race. Although an employer has great flexibility in choosing a management-level

employee, Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987), evidence of preselection (or,

presumably, as in this case, “pre-rejection”) “operates to discredit the employer’s proffered

explanation for its employment decision,” and “is relevant evidence of the employer’s motivation,”

Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). 

Kimble makes several other allegations, in addition to those that we examine: (1) that the 2

Office delayed Konrad’s start date a few weeks to allow him to gain requisite experience; (2) that

the interview panel overlooked Kimble’s past enforcement experience; and (3) that Wasylyshyn

disregarded Kimble’s higher interview scores for “enthusiasm and motivation,” despite a supposed

desire to hire “self-motivated” individuals. Although these latter claims may offer slight probative

value, because we deem Kimble’s other arguments adequate, we do not address them now.

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In explaining how he was pre-rejected, Kimble stresses that both Reynolds and Wasylyshyn

candidlyopposed his supervisors’ unqualified recommendations before they had even seen Kimble’s

application materials. But at the same time, Reynolds encouraged two Caucasian employees

(Deputies Otley and Konrad) to apply, notwithstanding their professed inability to meet posted

job requirements. In confronting this hurdle, Reynolds vaguely told one applicant he could “help”

him with his shortcomings and, after consulting with Wasylyshyn, offered to waive requirements for

the other.

In light of these facts, we believe that a reasonable jury could infer that the Office

anticipatorily decided not to hire Kimble. The reasons for the Office’s decision are unclear. For

example, Shank’s testimony might support Wasylyshyn’s explanation that he wanted to focus on

enforcement. Yet the fact that Wasylyshyn and Reynolds offered to overlook or waive stated job

requirements for some (Caucasian) applicants casts doubt on the assertion that they sought “the most

qualified applicant” for the job, or at least suggests that the stated requirements were not actually

imperative. The more subjective Appellees’ hiring decision, the more closely we must scrutinize

their proffered rationales. See Grano v. Dep’t of Dev., 699 F.2d 836, 837 (6th Cir. 1983) (“[T]he

legitimacy of the articulated reason for [an] employment decision is subject to particularly close

scrutiny where the evaluation is subjective.”).

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Kimble v. Wasylyshyn

2. HR assisted unqualified candidates, but not Kimble.

Second, Kimble claims that Bender helped thwart his promotion prospects bybuilding a pool

of Caucasian applicants, regardless of whether theymet the position’s stated requirements. Though

Bender encouraged at least two unqualified employees to apply for the position, we find her

interaction with DeputyOtley—for whom she drafted a letter of interest and arranged a meeting with

Reynolds—most questionable. In her defense, Bender claims she was new to the position and did

not know whether everyemployee had the necessaryqualifications. But this testimonyconflicts with

Otley’s statement that he explicitly told her he lacked both road-patrol experience and computer

skills.

In addressing this point, the trial court described Bender’s actions as “[those] of a helpful

Human Resources Manager.” Kimble, 687 F. Supp. 2d at 710. Such a conclusion may oversimplify

the situation. Providing an opportunity to one candidate in the hiring process, to the disadvantage

of a competitor within a protected class, can serve as evidence of pretext. See Kline v. Tenn. Valley

Auth., 128 F.3d 337, 351 (6th Cir., 1997); Goden v. Runyon, 885 F. Supp. 1104, 1108–09 (W.D.

Tenn. 1995) (finding pretext where defendant-employer offered pre-interview subject matter training

to a younger applicant, but not to an older applicant). Per Bender’s own testimony, she was aware

that Kimble was interested in the position on the day he submitted his materials—the day the posting

opened. Yet she did not take him to see Reynolds or even forward his application until the deadline. 

Parsing these facts, we reason that a jury could infer that Bender provided preferential assistance to

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certain applicants and overlooked (or even helped them surmount) their deficiencies, all to Kimble’s

detriment.

3. Only Kimble met the job’s posted requirements.

Third, Kimble points out that at the time of the posting of the Environmental Sergeant

position, he was the most qualified applicant—at least in terms of its written requirements. 

Specifically, he possessed both the requisite road experience and a commercial driver’s license

(although the posting stated that applicants had six months to attain the license). Meanwhile, Konrad

had no license and lacked a few months’ patrol experience. And, when Reynolds offered to “waive”

the road-patrol requirement for Konrad, he did so very discreetly. He did not, for example, formally

alter the posted job qualifications or mention the decision to the interview panel. 

The district court dismissed this argument as “frivolous,” stating that the Office did not

intend for candidates to meet the job requirements before applying, but rather before assuming the

position. But this reading conflicts with the posting’s wording: “AnyRoad Patrol Deputies meeting

above requirements . . . should submit a letter of interest . . . .” It does not say, “Any Road Patrol

Deputies who will soon meet above requirements . . . .” Furthermore, Reynolds and Wasylyshyn’s

actions belie such an interpretation: if Konrad were eligible, why did they need to “waive” the roadpatrol requirement for him? And why did they withhold this waiver from the interview panel? We

believe that a reasonable jury, accepting these allegations as true, could conclude that the two

willingly overlooked their own requirements to promote favored candidates—again calling into

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question the objectivity of their assessment and furthering inferences of discrimination. See Grano,

699 F.2d at 837 (recognizing that “subjective evaluation processes intended to recognize merit

provide ready mechanisms for discrimination” and thus call for close judicial scrutiny).

Additionally, these actions appear to undermine Appellees’ purported desire to “select the best

candidate for the job.”

4. Enforcement rates were not part of the job description.

Fourth, Kimble highlights that after the panel completed its interviews, Chief Deputy

Reynolds distributed enforcement activity reports and encouraged the panel to consider them when

choosing between the candidates. Enforcement statistics and activity levels were nowhere in the job

posting’s requirements or description. Ultimately though, these numbers proved outcome

determinative, as the panel’s scenario-dependent recommendation suggests. Kimble argues that the

numbers were the product of retroactive data mining, meticulously selected to “tip the scale” in

Konrad’s favor.

In discussing this contention, the district court noted that the allegation “bolsters rather than

undermines” Appellees’ position, and applauded the Office for developing “a valid way to

distinguish the candidates.” Kimble, 687 F. Supp. 2d at 709. Again, however, this observation

makes light of Kimble’s argument; he complains not that the Office used LEARs, but rather that it

did so spontaneously and without warning to candidates or panel members. Office personnel

prepared these lists weeks before the interview. Why then could they not advise the panel and

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interviewees that the LEARs might be consulted to settle a “tie”? We recognize that “employers are

not rigidly bound by the language in a job description.” Browning v. Dep’t of the Army, 436 F.3d

692, 696 (6th Cir. 2006). Still though, other circuits have held that an employer’s departure from

the selection criteria in a job announcement to the detriment of a minority employee can be probative

of discrimination. See Courtney v. Biosound, Inc., 42 F.3d 414, 421 (7th Cir. 1994) (denying the

employer’s motion for summary judgment in an age-discrimination case where the job description

failed to mention a requirement that the employer later claimed was essential); Gallo v. Prudential

Residential Servs., 22 F.3d 1219, 1225 (2d Cir. 1994) (same).

In response, Appellees argue that “every employee . . . had reason to assume that activity

levels would be considered.” Yet this presumptive stance unfairlyburdens the applicant to anticipate

the employer’s expectations. Indeed, Wasylyshyn himself conceded that this “important factor”

should have appeared in the job posting. Thus, although the use of LEARs may have been an

objective means of distinguishing between two qualified candidates, a jury might just as easily

conclude that the data was prepared well in advance (as it indisputably was), then sprung upon the

interview panel (again, as it indisputably was) to help ensure that Konrad received their

recommendation.

5. Earlier decisions overlooked enforcement rates.

Fifth, Kimble emphasizesthat despiteWasylyshyn’s professed desire to increase enforcement

activity, in the last departmental promotion, the Sheriff selected Timothy Spees, a candidate whose

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LEARs were among the lowest in the applicant pool. Kimble argues that this sudden emphasis on

activity levels is thus contrived. An employer’s failure to uniformly apply the policies it cites as the

basis for its hiring and firing decisions can demonstrate prextext. See Harrison v. Metro. Gov’t, 80

F.3d 1107, 1117 (6th Cir. 1996), abrogated on other grounds by Harris v. Forklift Sys., Inc., 510

U.S. 17, 20 (1993), as recognized in Jackson v. Quanex Corp., 191 F.3d 647, 667 & n.6 (6th Cir.

1999); accord Lamer v. Metaldyne Co., 240 F. App’x 22, 33 (6th Cir. 2007).

In response to this contention, the trial court noted that according to Shank and Wasylyshyn,

Spees was head-and-shoulders above the other candidates, such that the panel did not need to resort

to LEARs as a “tie-breaking” mechanism. Kimble, 687 F. Supp. 2d at 710. Moreover, Appellees

note that Spees was promoted to Road Patrol Shift Sergeant, which, according to Wasylyshyn, is

“not an enforcement position.” Yet this latter argument conflicts with the testimony of Shank, who

agreed that on road patrol, “one of the main functions, if not the most important function, is . . .

activity levels on the road,” (i.e., enforcement activity) and that the Office thus sought “somebody

proactive.” 

Although the trial court’s explanation—that LEARs were only a means of deciding between

two closely qualified candidates—is workable, Kimble’s argument casts doubt on the sincerity of

Appellees’ motives, as well as the objectivity of their procedures. After all, if enforcement really

were that important to Wasylyshyn, why would he not consider it in all hiring decisions? A jury

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could reasonably disbelieve Wasylyshyn’s proffered explanation, providing further evidence from

which a jury might reject the Appellees’ stated hiring rationale.

6. The OCRC found probable cause for discrimination.

Finally, Kimble directs us to the OCRC’s report, in which the agency concluded that it was

“probable that [Appellees] engaged in an unlawful discriminatory practice.” Although the OCRC’s

report is not dispositive, see Kremer v. Chem. Constr. Corp., 456 U.S. 461, 469–70 (1982), parties

may generally admit such findings at trial, Chandler v. Roudebush, 425 U.S. 840, 863 n.39 (1976)

(“Prior administrative findings made with respect to an employment discrimination claim may, of

course, be admitted as evidence . . . .”). Moreover, the agency’s probable cause finding should

receive “substantial weight.” Wrenn, 808 F.2d at 499; accord Cooper v. Phillip Morris, Inc., 464

F.2d 9, 12 (6th Cir. 1972). The OCRC’s determination is an additional piece of circumstantial

evidence for the jury to consider, and it furthers Kimble’s cause.

7. The totality of the evidence allows an inference of discrimination.

As our past discussion suggests, this case involves a detailed fact pattern and highly

particularized allegations, frustrating our attempts to find perfectly analogous case law. Precedent

supports the notion that each of Kimble’s assertions regarding the Department’s handling of his

application can suffice individually to thwart a defendant’s proffered rationale. And, when we

consider the totality of the evidence—(1) Kimble’s “pre-rejection”; (2) HR’s recruitment of

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unqualified candidates; (3) Reynolds’s and Wasylyshyn’s undisclosed decision to “help” certain

applicants with requirements or “waive” requirements altogether; (4) the sudden introduction of

enforcement statistics at the end of the interview process; and (5) the OCRC’s probable cause

finding—it too must suffice, leaving us with a strong suspicion of race-based preference. Moreover,

we emphasize that at the summary judgment stage, Appellees face a very high burden: “If the

plaintiff[] ha[s] made out a prima facie case of discrimination, the defendant can be awarded

summary judgment only if no reasonable jury could conclude that the reasons offered for the

[detrimental employment action] were only a pretext hiding a discriminatory motive.” Bender v.

Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir. 2006) (emphasis added). And because we find

that Kimble’s evidence creates a compelling narrative that casts doubt upon Appellees’ professed

hiring rationale, we are unconvinced that no reasonable jury could find in his favor.

III. Conclusion 

For these reasons, we reverse the district court’s grant of summary judgment and remand the

case for trial.

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