BOWLING GREEN - One month before a trial is to begin in a discrimination case filed against Wood County Sheriff Mark Wasylyshyn, the sheriff and county commissioners are asking a federal court judge to dismiss the claim.
Attorneys for the county and for Deputy James E. Kimble are scheduled to give oral arguments at 1:30 p.m. Monday before Judge Jack Zouhary in U.S. District Court in Toledo.
The county is asking the court to grant its motion for summary judgment, saying Sheriff Wasylyshyn promoted Deputy Rodney Konrad, who is white, over Deputy Kimble, who is African-American, because Deputy Konrad was the most qualified applicant for a sergeant's position overseeing the environmental division.
The two were the only deputies who applied for the job when it was being filled in 2006.
The sheriff said he promoted Deputy Konrad because he wanted the environmental sergeant to be more enforcement-oriented than in the past, and that Deputy Konrad's record of making arrests and giving citations as a road deputy was higher than Deputy Kimble's.
"Our claim is Konrad was the best qualified person for the position, and the sheriff has a right to hire deputies, to set their duties, and to set the focus of each individual position," said Linda Holmes, an assistant Wood County prosecutor.
"If the sheriff wanted that sergeant's position to focus on enforcement, Konrad had the best demonstrated abilities to come through for enforcement."
R. Michael Frank, an attorney for
Deputy Kimble, does not dispute the sheriff's right to hire the most qualified person.
But he contends Deputy Konrad did not meet all the posted job requirements while Deputy Kimble met all of them, including the fact that he had more than five years of road patrol experience and a commercial driver's license.
Mr. Frank said the sheriff did not include enforcement activity as a requirement for the job.
"It was a last-minute qualification inserted after all the oral interviews were completed," Mr. Frank said.
Although Sheriff Wasylyshyn told deputies when he took office in 2005 that he wanted them to focus on citations and high enforcement activity, Mr. Frank said the sheriff did not establish a standard for performance such as an expected number of stops or tickets.
To say that Deputy Konrad had more activity based on the numbers of reports, citations, and arrests he had made is not an objective measure if there is no standard, Mr. Frank maintains.
"Everyone knows what a standard is, but just to throw statistics out and have no standard for measurement is what is called a recipe for discrimination," he said.
Deputy Kimble, who joined the sheriff's office in 1989, is one of two African-American employees at the department.
In 2007, he filed a discrimination charge with the Ohio Civil Rights Commission contending he was passed over for the promotion because of race.
In February, 2008, the commission found probable cause that Deputy Kimble had been discriminated against because of his race. He filed suit in federal court in September, 2008, and the case is set for trial Dec. 8.
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