Kimble v. Wasylyshyn, 10-3110
| Decision Date | 28 September 2011 |
| Docket Number | No. 10-3110,10-3110 |
| Parties | 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 County Commissioners, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0688n.06
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 County Deputy 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.
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 early retirement, thereby creating an opening for an Environmental Sergeant. The Environmental Sergeant's duties included 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."
Reynolds officially posted the Environmental Sergeant opening at the end of August, but restricted it to current sergeants, none of whom was African American.1 Shortly after Reynolds 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 somebody who 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.
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, Deputy Tom 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 Otley to Reynolds'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 road-patrol 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 only applicants for the 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 WilliamErvin, 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.
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.
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 takenas 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...
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