NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0688n.06 No. 10-3110 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J AMES E. KI MBL E, Plaintiff-Appellant,

v. MARK WASYL YSHYN, individually and in his officia l capa city as Sheriff of Wood C o unty ; BO ARD OF WOOD COUNTY COMMI SSI ONERS; J I M CARTER; TI M BROWN; AL VI

N PERKI NS, in their officia l capa city as Commi ssioners of Wood County , Ohio, Boa rd of Wood County Commi ssioners, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT C OURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : SUTTON and COOK , Circuit J udg es; GREER, District J udg e. *
COOK, Circuit J udg e. Wood County Deputy J ames Kimble appea ls the district court’s g rant of summary judgme nt to the defe ndants in this employ ment-base d rac ial-discrim i n at ion action. Be ca u s e we conclude that Kimble prese nted sufficie nt circ umstantial evidenc e from which a
re as o n able jury could find the defe ndants’ proff ere d hiring rationale prete x tual, we reve rse th e district court’s judg ment and re mand the ca se for trial.

The Honora

ble J

. Ronnie Gre er, Uni t ed S t at es District J udg e for the Easter n District of * Tenne ssee, sitting by

desig nation.No. 10-3110

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I

.
This dispute arises from alleg ations that the Wood Count y Sheriff’ s Offic e (the “Of fice ”)

rac ially discriminated ag ainst Kimble, an Afric an Americ an, when considering candida t es for an internal promotion. The curr ent County Sheriff, Mark Wasy ly shy n , assumed his role in J anuar y 2005. Per Wasy ly shy

n’s own testimony , upon taking office , he and his Chief Deputy , Eric Rey nolds, soug ht to overha

ul many of his prede cessor ’s m anage ment policies. Of particula r rele vance , Wasy ly shy

n states that he intended to take a more ag g ressive stance on enfor ceme nt activities (e.g ., writing tickets and making arr ests) and implement more formalized hiring proce dures. Eig hteen months into Wasy ly shy n’s term, Serg eant Bill Fr ankar t of the Offic e’s Road Patrol Division a

n n o u n c e d h is e a

r ly r e ti r e me n t, there by cre ating an opening for an Environmental Serg eant. The Environmental Serg eant’ s dutie s in c lu d e d e n f o r cing solid-waste laws, inspecting junky ards, and supervising the deputy in c harg e of the inmate litter-control cre w. Prior to his depar ture, Fr ankar

t, who employ ed Kimble part-time in his rec y cling b u s i n es s , met with Chief Deputy Rey nolds to discuss potential repla ceme nts. At that time, Kimble had worke d in the Offic e near ly sevente en y ear s—having spent the last nine as a Road Patrol Deputy —and expressed interest in the position. Fr ankar t thus told Rey

nolds about Kimble, stating that he would “m ak e an excellent choice ”; Rey nolds, however , responde d with “something to the eff ect that he didn’t think so.”

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asylyshyn Rey nolds o ff i cially posted the Environmental Serg eant opening at the end of Aug ust, but restric ted it to curr ent serg eants, none of whom was Afric an Americ an. Shortly after Rey nolds 1

announce d the opening , Wasy ly shy n approa ched Serg eant J im Shank and encour ag ed him to apply

. Shank ref used for persona l rea sons, but also rec ommended Kimble—whom he had overse en on road patrol—for the position, since Kimble was trained in litter en fo rcement. Thoug h Shank assure d Wasy ly shy

n that he “re ally never had any problems with [Kim ble],” the Sheriff stated that “he rea lly didn’t want [hi m] to have that position,” and pref err ed somebody who would “g o out and write some tickets.” When the posting pe riod closed without any submissi ons, Rey

nolds ex tended the de adline and opene d the position to deputies. He included sever al requirements i n the j ob descr iption: (1)
at least five y ear s’ road- p at ro l ex p erie nce; (2) a valid commerc ial driver’ s license, to be obtained within six months of rec eiving the position; (3) fl ex i b l e d ay s and hours; (4) rec ord-ke eping and statistic-development abilities; (5) comput er experience ; (6) public-speaking ability ; and (7) no
rec ent d i s cipl inary issues. Deputy Kimble, who had the requisite experience and a commerc ial driver’ s license and considere d himself otherwise qualified, applied for the position the first day it opened to him.

The Offic e employ s two Afric an Americ ans among its roug hly 122-member workfor ce: 1 Deputy Kimble and anothe r individual, a cor rec tions officer . This 2-in-122 figure c losely mirrors the demog raphic s of Wood Count y as a w hole. -3-No. 10-3110

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Also during this second posting period, the Offic e’s Human Resource s Represe ntative, J oneal Be nder, solicited applications from three deputies who passed throug h her offi c e , e v e n though

none expressed interest in the position. I n one instance, the would-be applicant, Deputy Tom Otley , told Be nder that he lacke d road- patrol experience and computer skills—bot h stated require ments for the position. Be nder offe red to draf t a letter of interest for Otley and later did so, even though Otley expressed doubt about s igning t h e letter and provided no input on the l etter’ s content. After their

conver sation, Be nder escor ted Otle y to Re y

nolds’s office to discuss the position further

. When Otley ag ain explained his shortcoming s, Rey nolds assure d him that he was “the most qualified for the job,” and offe red to “help” him with his defic iencies. Despite this g ener ous as s i s t an ce , Otley , like the other two de puties Be nder a pproac hed, ultimately

declined to a

pply

.
On the posting period’s final day , Deputy Rodney Kon ra d , an ei g ht-y ear veter an with the Offic e, submitt ed a letter of interest to Be n d er . P ri o r to apply ing, howeve r, Konra d met with Rey nolds to discuss his application beca use he rea liz ed he lacke d a few months of the require d roadpatrol ex p er i en ce. After talking to Konra d, Rey nolds prese nted the matter to Wasy ly shy n, who decide d to waive the require ment for him. At that point Rey nolds encour ag ed Konra d “to g o ahea d and apply any way .”
When the posting period ended, Konra d and Kimble wer e the o n ly a p p li c a n ts f o r th e p osition. The Office schedul ed i n terview s for early November and then compiled a five-me mber int ervie w panel consisting of Ms. Be nder, Chief Deputy Rey nolds, Road Patrol Division L ieutenant Wil liam

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asylyshyn Ervin, and two individuals from the County Gover nment—County Administrator Andre w Kalmar and Solid W aste Mana g ement District Dire ctor Ke n Rieman. During the interviews, the panel asked Kimble and Konra d the same set o f p re pare d questions. Eac h member took notes and score d the candida tes acc ording to a ten-c ateg ory g rading sheet that Wasy ly shy

n had prepa

red. After the question-a n d-answe r session, the panel rate d the candida tes quite closely : in ag g reg ate, Konra d rec eived 200.5 points; Kimble rec eived 194. Be fore discussing scores or rec ommendations, howeve r, Rey nolds distribut ed L aw Enforce ment Activity Reports (“L EARs”), detailing the two deputies’ respe ctive y ear -to-date citation and arr est statistics. Although enfor ceme nt rate s we re not among the selec tion criter ia in the job posting, Be nder reque sted that a lieutenant in the Road Patrol Division run the L EARs sever al wee ks in advanc e, in prepa ration for the interviews. The repor ts showed that Konra d had issued more citations and made

more arr ests than Kimble. Rey nolds then emphasized that high activity and enfor ceme nt levels wer e “the direction the s heriff wants.” Upon receiving this new information, the panel took two votes: it voted three -to-two to rec ommend Kimble if Wasy ly shy n “liked the prog ram just the way it was,” and four- to-one to rec ommend Konra d if Wasy ly shy n “wa nted to take a more strict law enfor ceme nt approa ch

. ” Be nder prepa red a memo for Wasy ly shy n explaining the panel’ s rec ommendations. Wit hin da y s, the Sheriff announce d to the Offic e that he w as promoting Konra d; Konrad a ssumed the position a month later.

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I n April 2007, Kimble filed a co m p l ai n t with the Ohio Civil Rights Commi ssion (the “OCRC”) alleg ing rac ial discrimination. After speaking with eac h member of the interview panel, the OCRC issued a deter

mination letter finding “proba ble cause ” for discrimination. A few months later, Kimble initiated this suit in the U.S. District Court for the Norther n District of Ohio, claiming violations of (1) Title VI I 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. T he def endants moved for summary judgme nt, which the d i s trict court g rante d following a hear ing. Kimble v. W asylyshyn , 687 F. Supp. 2d 703, 710–11 (N.D. Ohio 2009). I n its memorandum opinion and order , the court conclude d that althoug h Kimble established a prima fac ie case of rac ial discrimination, he failed to show that the defe ndants’ proff ere d rea soning for the hiring selec tion was prete x tual. Id

. Kimble appea ls.

I I . Analy sis

A. Applicable L eg al Fr amewor k

We revie w de novo a district court’s g rant of summary judgme nt. Ciminil lo v. Streicher , 434 F.3d 461, 464 ( 6th Cir. 2006). Summary judgme nt is proper “if the movant shows that there is no g enuine dispute as to a

ny materia l f

act and the movant is e ntitled to judgme nt a s a matter of law.” Fe d. R. Civ. P. 56(a)

. Once t h e m oving party meets its initial burden, the nonmovant must “desig nate spe cific f

acts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (interna l quotation marks and citation omitted). “Where the rec ord taken -6-No. 10-3110

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as a whole could not lead a rational trier of fac t to find for the non-moving party , there is no ‘g enuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 5 87 (1986) (citation omitted). But in making our deter mination, we may not “we igh the evidenc e and deter mine the truth of [any disputed] matter,” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986); we must instead view the fac ts in the rec ord and all infere nces that can be draw n there from in the light most favora

ble to the nonmoving pa

rty , Matsushita , 475 U.S. at 587–88.
The same leg al analy sis applies to all of Kim ble’s claims, reg ardle ss of whether they arise under Title VI I , § 1981, or the Ohio Civil Rights Act. See Hollins v. Atl. Co. , 188 F.3d 652, 658 (6th Cir. 1999). Be cause Kimble prese nts circ umstantial (ra ther than direc t) evidenc e of discrimination,

we revie w his case under the McD onnell Douglas burden- shifting scheme

. See McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 802–05 (1973); see also Tex. Dep’ t of Cmty. Affairs v. Burdine , 450 U.S. 248, 252–56 (1981) (e x pounding upon McD onnell Douglas ).
The parties conce de that Kimble established a prima fac ie case of rac ial discrimination. See, e.g. , Risch v. Royal Oak Police Dep’ t , 581 F.3d 383, 391 (6th Cir. 2009). Sheriff Wasy ly shy n
acc ording ly provided three leg itimate, nondiscrimin at o ry rea sons for the hiring decision: (1) he pref err ed candidates with high activity , initiative, and self-motivation; (2) he soug ht the most qualified applicant for the position; and (3) he wished to focus on g reater en forcement within the division. Under McD onnell Douglas , Kimble must now show that Appellee s’ proff ere d rea sons are prete x tual by providing “suffi ci ent evidenc e from which the jury [could] rea sonably reje ct the

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asylyshyn employ er’ 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 pl aintiff may meet this burden either “by

persua ding the court that a dis criminatory rea son more li kely motivated the employ er,” or “by showing that the employ er’ s proff ere d expla n at i o n i s unworthy of cre dence .” Burdine , 450 U.S. at 256. But in either case , he must do so by producing additional evidenc e rathe r than mere conjec ture. Manzer , 29 F.3d at 1084.

Ki mble responds indirectly , by offe ring various items of circ umstantial evidence i n an attempt to ref

ute Appellee s’ purported hiring rationale

. I n this instance, a jury may “infe r the ultimate fac t of discrimination from the falsity of the employ er’ s explanation.” Ree ves v. Sanderson Plumbing Prods. , 530 U.S. 133, 147 (2000). As the Court e x plained, [p] roof that the defe ndant’s explanation is unworthy of cre dence is simply one form of circ umstantial evidenc e that is probative of intentional discrimination, and it may be quite persua sive. I n appropr iate circ umstances, the trier of fac t can rea sonably infer from the falsity of the explanation that the employ er is dissembling to cover up a discriminatory purpose. Such an infere nce is consistent with the g ener al principle of evidenc e law that the fac tfinder is e ntitled to consider a party ’s dishonesty about a materia l fac t as “a ff

irmative evidenc e of g uilt.” Moreove r, once the employ er’ s justificat i o n h as been eliminated, discrimination may well be the most likely alternative explanation, espec ially since the em p l o y er is in the best position to put forth the a ctual re ason for its decision.
Id. at 147 (c i t at i o n omitted). Our question thus become s whether Kimble’s prima fac ie case and circ umstantial evidenc e could lead a rea sonable jury —if it acc epts his fac tual alleg ations as true and

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draw s all infere nces there from in his favor —to reje ct Appellee s’ proff ere d hiring rationale , thus permitting an infere nce that discriminatory i n t ent truly motivated the decision. We believe that Kimble meets this burden.

B. Kimble’s Circumstantial Evidence

I n his brief, Kimble highlig hts sever al fac ts that he believes call into quest ion Appellee s’ articula ted hiring rationale an d i n s tead reve al their true, discriminatory motive. Upon revie wing these a ssertions, we discuss his strong est arguments below. 2

1. Kimble was “ pre- reje cted.”
First, Kimble argues that Wasy ly shy n and Rey nolds summarily reje cted his candida cy based upon his rac e. Although an employ er has g reat flexibi lity in choosing a m an age m ent-leve l employ ee, W

renn v. Gould , 808 F.2d 493, 502 (6th Cir. 1987), evidenc e of prese lect i o n (or, presumably , as in this case , “pre -re jection”) “oper ates to discredit the em p l o y er’ s proff ere d explanation for its employ ment decision,” and “is rele vant evidenc e of the employ er’ s motivation,” Goostree v . Tennessee , 796 F.2d 854, 861 ( 6th Cir. 1986).

Kimble makes sever al other alleg ations, in a ddition to those that we examine: (1) that the 2 Offic e delay ed Konrad’s start date a few wee ks to allow hi m to ga in requisite experienc e; (2) that the interview panel overlo o k ed Ki mble’s past enfor ceme nt experience ; and (3) that Wasy ly shy n disreg arde d Kimble’s highe r interview score s for “enthusiasm and motivation,” despite a supposed desire to hire “self- motivated” individuals. Although these latter claims may offe r slight probative value, be cause we de em Kimble’s other arguments adequate, we do not a ddress them now. -9-No. 10-3110

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I n explaining how he was pre- reje cted, Kimble stresses that both Rey nolds and Wasy ly shy

n candidly opposed his supervisors’ unqualified rec ommendations before they had eve n seen Kimble’s

a p p l i cati on materials

. But at the same time, Rey nolds encour ag ed two Cauca sian emplo y ee s (De puties Otl ey and Konra d) to apply , notwithstanding their profe ssed inability to meet posted job r equire ments. I n confr onting this hurdle, Rey nolds vag uely told one applicant he could “help” him with his shortcoming s and, afte r consulting with Wasy ly shy n, offe red to waive require ments for the other.

I n l i g ht of these fac ts, we believe that a rea sonable jury could infer that the Of fi ce

an t i ci p atorily decide d not to hire Kimble. The rea sons for the Offic e’s decision are unclear. Fo r example, Shank’s testimony might su p port Wasy ly shy n’s explanation that he wanted to focus on enfor ceme nt. Yet the fac t that Wasy ly shy n and Rey

nolds offe red to overlook or waive stated job require ments for some (Cauca sian) applicants casts doubt on the asser tion that they soug ht “the most qualified applicant” for the job, or at least sug g est s t hat the stated require ments wer e not actua lly imperative. The more subjective Appell ee s ’ h i ri ng decision, t he more closely we must scrutinize their proffer ed rationales. See Grano v. Dep’t of Dev

. , 699 F.2d 836, 837 (6 t h C ir. 1983) (“[T] he leg itimacy of the ar t i cu lated rea son for [an] employ ment decision is subject to particula rly close scrutiny wher e the e valuation is subjective.”)

.

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2. HR assisted unqualified c andidates, but not Kimble.
Second, Kimble claims that Be nder helped thwart his promotion prospec ts by building a pool of Cauca sian applicants, reg ardle ss of whether they met the position’s stated require ments. Thoug h Be nder encour ag ed at least t wo u n q u ali fied employ ees to apply for the position, we find her interac tion with Deputy Otley —for whom she draf

ted a letter of interest and arr ang ed a meeting with Rey nolds—most questi onable. I n her defe nse, Be nder claims she was new to the position and did
not know whether ever

y employ ee had the nece ssary qualifica tions. But this testimon y c o n flicts with Otley ’s statement that he expli citly told her he lacke d both roa d -p atrol experience and computer skills.

I n addre ssing thi s p o i n t , t he trial court descr ibed Be nder’ s actions as “[those] of a helpful Human Resource s Manag er.” Kimble , 687 F. Supp. 2d at 710. Such a conclusion may oversimplify the situation. Providing an oppor tunity to one candida

te in the hiring proce ss, to the disadvantag e of a competitor within a protec ted class, can serve as evidenc e of prete x t. See Kline v. Tenn. Valley Auth. , 128 F.3d 337, 351 (6th Cir., 1997); Goden v. Runyon , 885 F. Supp. 1104, 1108–0 9 (W

. D. Tenn. 1995) (finding prete x t wher e defe nda n t- e mp lo y e r o f

f e r e d p r e - in

te rview subject matter training
to a y oung er applicant, but not to a n older applicant)

. Per Be nder’ s own testimony , she was awa re that Kimble was interested in the position on the day he submitt ed his materia ls—the day the posting opened. Yet she did not take him to see Rey nolds or even forwa

rd his application until the deadline. Parsing these fac ts, we rea son that a jury could infer that Be nder provided pref ere ntial assistance to
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cer tain applicants and overlooke d (or even helped them surmount) their defic iencies, all to Kimble’s detriment.

3. Only

Kimble met the job’s posted re quirements.
Third, Kimble points out th at at t he time of the posting of the Environmental Serg eant position, he was the most qualified applicant—at least in terms of its written require ments. Specifica lly , he possessed bot h t h e requisite road experience and a commerc ial driver’ s license (althoug h the posting stated that applicants had six months to attain the license)

. Meanw hile, Konra d had no license and lacke d a few months’ patrol experience

. And, when Rey nolds offe red to “wa ive” the road- patrol require ment for Konra d, he did so very discree tly

. He did not, for example, formally alter the posted job qualifications or mention the de cision to the interview pa nel.
The district court dismiss ed this arg ument as “fr ivol o u s , ” s t at i ng that the Offic e did not intend for candida

tes to me et the job r equire ments befor e apply ing, but rathe r befor e assuming the position. But this rea ding conflicts with the posting’s wording : “Any Road Patrol Deputies meeting above require ments . . . should submit a letter of intere st . . . .” I t does not say , “Any Road Patrol Deputies who will soon mee t above require ments
. . . .” Fur thermore , Rey

nolds and Wasy ly shy

n’s actions belie such an interpre tation: if Konra d wer e elig ible, why did they need to “wa ive” the roadpatrol require ment for him? And why did they withhold this waiver from the interview panel? We believe that a rea sonable jury , acc epting these alleg ations as true, co u ld conclude that the two wil l i n gl y o verlooke d their own require ments to promote favor ed candida tes—ag ain calling into -12-No. 10-3110

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asylyshyn question the objectivity of their assessment and further ing infere nces of discrimination. See Grano , 699 F.2d at 8 3 7 (r ecog nizi ng that “subjec tive evalua tion proce sses intended to rec og nize merit p ro v ide rea dy mecha

nisms for discrimination” and thus call for close judicial scrutiny ). Additionally , these actions appea r to undermine Appellee s’ purported desire to “sel ec t the best candida te for the job.”

4. Enforc ement rates wer e not par t of the job descr iption.

Fo urth, Kimble highlig hts that afte r the panel completed its interviews, Chief Deputy Rey nolds distributed enfor ceme nt activity repor ts and encour ag ed the panel to consider them when choosing betwee n the candida tes. Enforc ement statistics and activity levels wer e nowher e in the job posting’s require ment s or descr iption. Ultimately though, these numbers proved outcome deter minative, as the panel’ s scena rio-depe ndent rec ommendation sug g ests. Kimble argues that the numbers wer e the product of retroa ctive data mining, meticulously sel ec t ed t o “t i p the scale ” in Konra d’s favor.

I n discussing this contention, the district court noted that the alleg ation “bolsters rathe r than undermines” Appellee s’ position, and app l auded the Offic e for developing “a valid way to distinguish the candidates.” Kimble , 687 F. Supp. 2d at 709. Ag ain, howeve r, this observation makes light of Kimble’s argument; he complains not that the Offic e used L EARs, but rathe r that it did so spontaneously and without war ning to candida tes or panel members. Offic e personne l prepa red these lists wee ks befor e the interview. Why t h en co u ld they not advise the panel and -13-No. 10-3110

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interviewe es that the L EARs might be consulted to settle a “tie”? We rec og nize that “employ ers are not rig idly bound by the l ang uag e in a job descr iption.” Browning v. Dep’t of the Army , 436 F.3d 692, 696 (6th Cir. 2006). Stil l though, other circuits have he ld that an employ er’ s depar ture from the selec tion criter ia in a job announce ment to the detriment of a minority employ ee can be probative of discrimination. See Courtney v. Biosound, Inc. , 42 F.3d 414, 421 (7th Cir. 1994) (deny ing the employ er’ s motion for summary judgme nt in an ag e-discr imination case wher e the job de scription failed to mention a require ment that the employ er later claimed was essential); Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1225 ( 2d Cir. 1994) (same ).

I n response , Appellee s argue that “eve ry employ ee . . . had rea so n t o as s u m e that activity levels would b e c onsidered.” Yet this presumptive stance unfairly burdens the applicant to anticipate
t h e employ er’ s expectations. I ndeed, Wasy ly shy n himself conce ded that this “important fac t o r” should have appea

red in the job posting. Thus, altho u gh t h e u s e of L EARs may have been an objective means of distinguishing betwee n tw o q u al i fi ed candida tes, a jury might just as easily conclude that the data was prepa red well in advanc e (as it indisputably was), then sprung upon the interview p an el (ag ain, as it indisputably was) to help ensure that Konra d rec eived their

rec ommendation.

5. Earlier

decisions over looked enf orce ment rate s. Fifth, Kimble emph a s iz e s th a t d e s p it e Wa s y

ly s h y n ’ s p r o f e s s e d d e s ir e to incre ase enfor ceme nt activity , in the last depar

tmental promotion, the Sheriff selec ted Timothy Spees, a candida te whose

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L EARs wer e among the lowest in the applicant pool. Kimble argues that this sudden emphasis on activity levels is thus contrived. An employ er’ s failure to uniformly apply the policies it cites as the basis for its hiring and firing decisions can demonstrate prextex t. See Harrison v. Metro. Gov’ t , 80 F.3d 1107, 1117 (6th Cir. 1996), a b r o g a t ed on other grounds by Harris v. Forklift Sys., Inc. , 510 U.S. 17, 20 (1993), as recognized i n Jackson v. Quanex Corp. , 191 F.3d 647, 667 & n.6 (6th Cir. 1999); accord Lame r v. Me taldyne Co. , 240 F. App’ x 22, 33 (6th Cir. 2007).

I n response to this contention, the trial court noted that acc ording to Shank and Wasy ly shy n, Spees was head- and-shoulder s above the other candida tes, such that the panel did not need to resor t to L EARs as a “tie-bre aking ” mec hanism. Kimble , 687 F. Supp. 2d at 710. Moreove r, Appellees

n o t e that Spees was promoted t o Road Patrol Shift Serg eant, which, acc ording to Wasy ly shy n, is “not an enfor ceme nt position.” Yet this latter argument conflicts with the testimony of Shank, who ag ree d that on road patrol, “one of the main functions, if not t h e m o s t i m p o rt ant function, is

. . . activity levels on the road,” (i.e., e nforc ement ac tivity ) and that the Offic e thus soug ht “ somebody proac tive.” Although the trial court’s explanation—that L EARs wer e only a means of deciding betwee n two closely qual i fied candidates—is workable, Kimbl e’s arg ument casts doubt on the s incer ity of Appel l ee s’ m otives, as well as t he objectivity of t heir procedur es. After all, if enfor ceme nt rea lly

wer e that important to Wasy ly shy n, why would h e not consider it in all hiring decisions? A jury

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could rea sonably

disbelieve Wasy ly shy

n’s proff ere d explanation, pr oviding further evidenc e from which a jur

y might re ject the Appe llees’ state d hiring rationale

.
6. The OCRC found probable cause for discr imination. Finally , Kimble direc ts us to the OCRC’s repor t, in which the ag ency conclude d that it was “proba ble that [Appellees] eng ag ed in an unlawful discriminatory prac tice.” Although the OCRC’s repor t is not dispositi ve, see Kremer v. Chem. Constr. Corp. , 456 U.S. 461, 469–70 (1982), parties may g ener ally admit suc h finding s at trial, Chandler v

. Roudebush , 425 U.S. 840, 863 n.39 (1976) (“Prior administrative finding s made with re spect to an e mploy ment discrimination claim may , of

course , be admitted as evidenc e . . . .”). Moreove r, the ag ency ’s probable cause finding should

rec eive “substantial weig ht.” W renn , 808 F.2d at 499; accord Cooper v . Phillip Morris , Inc. , 464 F.2d 9, 12 (6th Cir. 1 9 72). The OCRC’s deter mination is an additional piece of circ umstantial evidenc e for

the jury to consider, a

nd it furthers Kimble’ s cause .
7. The totality

of the e vidence allows an infe renc e of discr imination.

As our past discussion sug g ests, this case i n v o l v es a detailed fac t pattern and highly particula rized alleg ations, frustrating our attempts to find perf ectly analog ous case law. Prece dent supports the notion that eac h of Kimble’s asser tions reg arding t h e Depa rtment’s handling of his application ca n s u ff

ice individually to thwart a defe ndant’s proff ere d rationale

. And, when we consider the totality of the evidenc e—(1) Kimble’s “pre -re jection”; (2) HR’s rec ruitment of

-16-No. 10-3110

Kimble v. W

asylyshyn unqualified candidates; (3) Rey nolds’s and Wasy ly shy

n’s u n d i s cl osed decision to “help” cer tain applicants with require ments or “wa ive” require ments altog ether ; (4) the sudden intro d u ct i on of enfor ceme nt statistics at the end of the interview proce ss; and (5) the OCRC’s prob ab l e ca use finding—it too must suffice , leaving us with a strong suspicion of rac e-ba sed pref ere nce. Moreove r,
we emphasize that at the s u m m ary judgme nt stag e, Appellee s fac e a very high burden: “I f the plaintiff[] ha[s] made out a prima fac ie case o f d i s crimi nation, the defe ndant can be awa rded summary judgme nt only if no reasonable jury could conclude that the reas o n s o ff er ed for the [detrimental employ

ment action] wer e only a prete x t hiding a discriminatory m o t i v e. ” B ender v. Hec ht’s Dep’ t Stores , 455 F.3d 612, 620 (6th Cir. 2006) (emphasis ad d ed). And because we find that Kimble’s evidence crea tes a co mpelling narrative that casts doubt upon Appellee s’ professed hiring rationale , we a

re unc onvinced that no reasonable jurycould find in his favor.

I I I . Conclusion

For these rea sons, we reve rse the district court’s g rant of summary judgme nt and rema nd the

case for tria l.

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