NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0688n.06
No. 10-3110
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JAMES E. KIMBLE, )
) Sep 28, 2011
Plaintiff-Appellant, ) LEONARD GREEN, Clerk
)
v. )
)
MARK WASYLYSHYN, individually and in ) ON APPEAL FROM THE UNITED
his official capacity as Sheriff of Wood ) STATES DISTRICT COURT FOR THE
County; BOARD OF WOOD COUNTY ) NORTHERN DISTRICT OF OHIO
COMMISSIONERS; JIM CARTER; TIM )
BROWN; ALVIN PERKINS, in their official )
capacity as Commissioners of Wood County, )
Ohio, Board of Wood County Commissioners, )
)
Defendants-Appellees. )
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.
*
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 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.”
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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.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.
1
The Office employs two African Americans among its roughly 122-member workforce:
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, 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 William
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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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No. 10-3110
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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Kimble v. Wasylyshyn
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).
2
Kimble makes several other allegations, in addition to those that we examine: (1) that the
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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Kimble v. Wasylyshyn
In explaining how he was pre-rejected, Kimble stresses that both Reynolds and Wasylyshyn
candidly opposed 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 by building a pool
of Caucasian applicants, regardless of whether they met the position’s stated requirements. Though
Bender encouraged at least two unqualified employees to apply for the position, we find her
interaction with Deputy Otley—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 every employee had the necessary qualifications. But this testimony conflicts 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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Kimble v. Wasylyshyn
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: “Any Road 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 road-
patrol 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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Kimble v. Wasylyshyn
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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Kimble v. Wasylyshyn
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 unfairly burdens 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 emphasizes that despite Wasylyshyn’s professed desire to increase enforcement
activity, in the last departmental promotion, the Sheriff selected Timothy Spees, a candidate whose
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Kimble v. Wasylyshyn
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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Kimble v. Wasylyshyn
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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