The Honorable Frank J. Magill was an active judge at the time this case was

1

submitted and assumed senior status on April 1, 1997, before the opinion was filed.

THE HONORABLE RICHARD W. GOLDBERG, Judge, United States Court 2

of International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3210

___________

David A. Duffy, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Charles R. Wolle; Harold D. Vietor; *

Ronald Longstaff, Sued as Ronald E. *

Longstaff, *

*

Appellees. *

___________

Submitted: March 13, 1997

 Filed: August 19, 1997

___________

Before WOLLMAN and MAGILL, Circuit Judges, and GOLDBERG, Judge. 1 2

___________

MAGILL, Circuit Judge.

David Duffy sought to be appointed to the position of

Chief United States Probation Officer (CUSPO) for the

United States District Court for the Southern District of

Iowa. A panel of three United States District Judges for
-2-

the Southern 
The Honorable William G. Cambridge, Chief Judge, United States District

3

Court for the District of Nebraska.

-3-

District of Iowa, comprised of Chief Judge Charles R.

Wolle, Judge Harold D. Vietor, and Judge Ronald E.

Longstaff (Panel), appointed a female applicant to the

CUSPO position. Because the Panel did not appoint him,

Duffy subsequently brought this Bivens action against the

Panel, alleging a Fifth Amendment due process violation

for the denial of equal protection through the practice

of reverse discrimination. The district court granted

3

summary judgment to the Panel, and Duffy now appeals. We

affirm.

I.

On April 29, 1994, Edwin Ailts resigned from the

CUSPO position for the United States District Court for

the Southern District of Iowa. Ailts had served as a

probation officer since 1963 and as the CUSPO for the

Southern District of Iowa since 1974. Although Ailts

tendered his formal resignation on December 7, 1993, he

had notified the Panel during the Fall of 1993 of his

intention to resign.

The Panel had the statutory authority to appoint a

successor to Ailts to fill the CUSPO position in the

Southern District of Iowa. See 18 U.S.C. § 3602. On

September 30 and October 1, 1993, Chief Judge Wolle

attended a conference in Washington, D.C., presented by

the Administrative Office of the United States Courts.

While at the conference, Chief Judge Wolle states that he
-4-

was informed that when [the Panel] needed to

select a replacement for Edwin Ailts, our chief

probation officer, [the Panel] should advertise

the position in a publication of national

circulation to reach all persons who might be

interested so [the Panel] could have an open,

nationwide, diverse pool of qualified

applicants.
-5-

Wolle Aff. (Apr. 30, 1996) at 1-2, ¶ 2, reprinted in I

J.A. at 17-18, Tab 5. In an affidavit, Ailts recounts

that:

At some time following the time I informed the

[Panel] of my intention to retire I had a

passing conversation with Judge Charles Wolle.

At that time he had recently returned from

Washington, D.C. He made a comment that while

in Washington he had received information about

an interest in the appointment of a female. At

this time I cannot recall the specific entity

that he indicated expressed that interest to

him. I assumed at that time that he was

referring to the Chief Probation Officer

position which would be vacated upon my

retirement since I had only recently indicated

my intention to retire and I was unaware of any

other vacant positions. This was a brief

conversation with Judge Wolle and the comment

was made by him in passing.

Ailts Aff. (June 14, 1996) at 1-2, ¶ 3, reprinted in II

J.A. at 143-44, Tab 14. Duffy contends that:

In October of 1993 I had a conversation with Mr.

Ailts. During that conversation he informed me

that Charles Wolle, the Chief Judge of the

COURT, had recently returned from a conference

in Washington with the Administrative Office of

the United States COURTS. He informed Mr. Ailts

that the Administrative Office was recommending

an aggressive effort on the part of the COURT to

recruit minorities and females as candidates for

the Chief Probation Officer position which was

becoming vacant.

Duffy Aff. (June 13, 1996) at 8, ¶ 20, reprinted in II
-6-

J.A. at 124, Tab 10.

The Panel prepared a vacancy announcement for the

CUSPO position and posted it in News and Views, a biweekly publication of the Probation Division of the

Administrative Office of the United States Courts that

was circulated nationwide to all probation officers. The

vacancy announcement stated that, to be qualified for the
-7-

CUSPO position, an applicant must possess "[a] 4-year

degree from an accredited college or university with

specialization in one or more of the social sciences

appropriate to the position to be filled. An advanced

degree in an appropriate area is preferred. In addition

. . . applicants must possess [at least six] years of

specialized experience . . . ." I J.A. at 25, Tab 5.

The required "specialized experience" included

"[p]rogressively responsible experience, including

management responsibility, in the investigation,

supervision, counseling, and guidance of offenders in

community corrections or pretrial programs." Id. The

vacancy announcement also explained that, as part of his

duties, a CUSPO "[r]eviews, analyzes, and interprets

statutory, Judicial Conference, and Parol Commission

requirements for administration of probation and parole

services; promulgates policies, procedures and guidelines

needed to meet these requirements . . . ." Id.

The Panel created a screening committee to review

applications for the CUSPO position. The screening

committee members included Judge Longstaff, Ailts, Don

Nickerson, who was the United States Attorney for the

Southern District of Iowa, and Paul Zoss, who was the

Federal Public Defender for the Southern District of

Iowa. The screening committee was to select three to

seven of the best qualified candidates for the CUSPO

position and refer those applicants to the Panel.

The screening committee received sixteen applications

for the CUSPO position. As a courtesy to applicants who

were currently employed as probation officers for the

Southern District of Iowa, the screening committee
-8-

elected to forward all such applicants to the Panel for

consideration. The screening committee ultimately

forwarded three names to the Panel: Jane McPhillips, who

was a Supervising United States Probation Officer for the

District of Minnesota; Duffy, who was a Supervising

United States Probation Officer for the Southern District

of Iowa; and John Stites, who was a Senior United States

Probation Officer for the Southern District of Iowa.
-9-

McPhillips had worked as a United States Probation

Officer since 1972, and had been a supervising probation

officer since 1990. During her tenure, McPhillips had

served in the District of Minnesota office, the Northern

District of Texas office, and in temporary duty positions

with the Administrative Office of the United States

Courts and the United States Sentencing Commission.

McPhillips held a bachelor's degree in psychology, a

master's degree in counseling and guidance, and a juris

doctorate. McPhillips had been a licensed attorney since

1985, and was a member of the state bar of Texas. 

Duffy had served as a United States Probation Officer

since 1974, and had served as a supervising probation

officer since 1990. Duffy had served only in the

Southern District of Iowa. Duffy held a bachelor's

degree in psychology, a master's degree with an emphasis

in rehabilitation, psychological counseling, and

corrections, and in 1971-72 had participated in, but had

not completed, an educational and school psychology

doctoral program.

A full description of Stites's qualifications is not

contained in the record. See I J.A. at 34-36, Tab 5

(incomplete resume of John Stites). It appears, however,

that Stites had less experience than either McPhillips or

Duffy as a probation officer, see id. at 34 (noting that

Stites was employed in 1976 by the Bi-State Metropolitan

Planning Commission in Rock Island, Illinois), and there

is no indication that Stites had ever earned an advanced

degree.

The Panel interviewed each of the applicants. While

the members of the Panel were personally familiar with
-10-

Duffy's and Stites's work, Panel members contacted judges

in Minnesota to obtain other jurists' impressions of

McPhillips. Judge Vietor explained that he "spoke

personally with Judge James Rosenbaum and Senior Judge

Harry MacLaughlin of the United States District Court for

the District of Minnesota," and that they "spoke very

well of Ms. McPhillips'[s] abilities and unequivocally

and highly recommended her for the position of Chief

Probation Officer." Vietor Aff. (Apr. 
-11-

26, 1996) at 2, ¶ 4, reprinted in I J.A. at 99, Tab 6.

Judge Longstaff stated that he had spoken with Chief

Judge Magnuson and Judge Rosenbaum of the District of

Minnesota. "Both judges were highly complimentary in

their praise and recommendation of Ms. McPhillips."

Longstaff Aff. (May 1, 1996) at 4, ¶ 5, reprinted in II

J.A. at 104, Tab 7.

In addition, the Panel received recommendations

regarding McPhillips and Duffy from their current

supervisors. Ailts, Duffy's outgoing supervisor,

recommended that Duffy be appointed. See Ailts Aff. at

2, ¶ 5, reprinted in II J.A. at 144, Tab 14. Glenn

Baskfield, CUSPO for the District of Minnesota and

McPhillips's supervisor, advised the Panel that "there is

little doubt that [McPhillips] would make an excellent

Chief Probation Officer." I J.A. at 41, Tab 5.

The Panel unanimously agreed to appoint McPhillips to

the position of CUSPO for the Southern District of Iowa.

Each member of the Panel has unequivocally declared that

McPhillips was the best candidate for the position, and

that her gender did not play a role in their decision to

appoint her. Chief Judge Wolle stated that:

At no time during the selection process did

gender play any role in our consideration of the

applicants. I voted to select McPhillips

because she was the most qualified person by

reason of her experience, her education, her

demeanor during the interview, the letters of

reference received with her resume, and the

uniformly very complimentary comments of the

Minnesota district judges and court officers we

phoned.
-12-

Wolle Aff. at 3-4, ¶ 8, reprinted in I J.A. at 19-20, Tab 5. Judge Vietor stated that:

I independently concluded that Ms. McPhillips

was the best qualified applicant for the

position. I was impressed with Ms.

McPhillips'[s] experience, which included

significant supervisory responsibility in the

District of Minnesota. I was also impressed

with Ms. McPhillips'[s] academic accomplishments

which included going to law school and 
-13-

obtaining a juris doctor degree while she was

serving as a probation officer in Minnesota.

Ms. McPhillips'[s] attributes also included

extensive legal and practical experience with

the Federal Sentencing Guidelines. One or more

of the Minnesota judges I spoke with also

commented on her excellent interpersonal skills

with staff, and I considered that a good

attribute. In reaching my conclusion I did not

in any way consider the gender of Ms. McPhillips

or the gender of Mr. Duffy and Mr. Stites.

Gender of the three was not mentioned in

discussions among Chief Judge Wolle, Judge

Longstaff and myself.

Vietor Aff. at 2-3, ¶ 5, reprinted in I J.A. at 99-100, Tab 6. Judge Longstaff stated

that:

It was my opinion that Ms. McPhillips was the

best qualified person of the three finalist

applicants to assume the responsibilities of

Chief Probation Officer. In coming to this

conclusion, I was influenced not only by Ms.

McPhillips'[s] strong academic background and

work experience but also by the recommendations

which I had received during phone conversations

from Chief Judge Magnuson and Judge Rosenbaum .

. . . Ms. McPhillips'[s] gender played no role

whatsoever in the [Panel]'s deliberations.

Longstaff Aff. at 3-4, ¶ 5, reprinted in 103-04, Tab 7. On March 14, 1994,

the Panel entered an order appointing McPhillips as CUSPO

for the Southern District of Iowa beginning May 2, 1994.

See I J.A. at 43, Tab 5. 

Subsequently, Duffy spoke with Judge Longstaff during

a fifty-minute meeting about the Panel's decision to

appoint another candidate, and Judge Longstaff told Duffy

that "it had been a very difficult decision . . . ."
-14-

Duffy Aff. at 10, ¶ 24, reprinted in II J.A. at 126, Tab

10. During a five- to ten-minute conversation between

Chief Judge Wolle and Duffy, Chief Judge Wolle stated

that he understood Duffy's disappointment, and

"encouraged [Duffy] to pursue what he called [Duffy's]

'cutting edge ideas' for the operation, management and

development of the PROBATION OFFICE which [Duffy] 
-15-

had presented in [his] interview." Id. at 10-11, ¶ 26,

reprinted in II J.A. at 126-27, Tab 10.

Although the Southern District of Iowa had in place

an Equal Employment Opportunity Plan (EEO Plan) that

provided a mechanism for pursuing complaints of

employment discrimination, Duffy did not access any

administrative remedies. Instead, on March 8, 1996,

Duffy filed a Bivens action against the Panel. In his

complaint, Duffy alleged that the Panel had violated

Duffy's Fifth Amendment right to due process when it

denied Duffy equal protection under the law by hiring a

"substantially less qualified female applicant" because

of her gender. See Compl. at 4, ¶ 11, reprinted in I

J.A. at 6, Tab 2. Duffy sought a declaratory judgment

that the Panel had acted unconstitutionally, an

injunction requiring his appointment to the CUSPO

position, unspecified monetary damages, and costs and

attorney's fees. Id. at 5-6, ¶¶ A-D, reprinted in I

J.A. at 7-8, Tab 2.

The Panel filed a motion to dismiss with the district

court. Because the motion had been supported by

affidavits and accompanying documents, the district court

construed the motion as a motion for summary judgment.

See Mem. Op. & Order (Aug. 5, 1996) at 1, reprinted in II

J.A. at 158, Tab 18. The district court rejected several

of the Panel's arguments, including the Panel's

contention that Duffy was precluded from bringing a

Bivens action because of the availability of

administrative remedies, see id. at 11, reprinted in II

J.A. at 168, Tab 18, and the Panel's claim of absolute

immunity. See id. at 14, reprinted in II J.A. at 171,
-16-

Tab 18. After conducting an analysis of qualified

immunity, the district court granted summary judgment to

the Panel. Id. at 21-22, reprinted in II J.A. at 178-79,

Tab 18 ("because Plaintiff has insufficient support for

his claims, and because policy considerations mandate a

'firm application of the Federal Rules of Civil

Procedure,' Butz v. Economou, 438 U.S. 478, 508 (1978),

to avoid subjecting public officials to the expense and

distraction of trial, the defendants' motion to dismiss,

treated as a motion for summary judgment, will be

granted" (footnote omitted)). 
Rule 56(f) provides: 4

Should it appear from the affidavits of a party opposing the motion that

the party cannot for reasons stated present by affidavit facts essential to

justify the party's opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to be obtained

or depositions to be taken or discovery to be had or may make such other

order as is just.

Fed. R. Civ. P. 56(f).

-17-

Prior to the district court's grant of summary judgment, Duffy's counsel had filed

a Federal Rule of Civil Procedure 56(f) affidavit and a Memorandum in Opposition to 4

the Motion to Dismiss expressing the need for additional discovery. See Baker Aff.

(June 17, 1996) at 2, ¶ 4, reprinted in II J.A. at 112, Tab 8 ("Until [Duffy] conducts

discovery and specifically has the opportunity to depose each of the Defendants he is

not in a position where he can reasonably make a presentation that the Plaintiff's [sic]

explanations for their actions are a pretext for unlawful discrimination."); Mem. in

Opp'n to the Mot. to Dismiss (June 20, 1996) at 28, § VII ("[Duffy] further requests

that since the affidavits of the Defendants do not address the prima facie claim of

gender discrimination of the Plaintiff that [the Court] either deny the summary judgment

aspect of the motion or stay any consideration of that motion and allow the Plaintiff to

undertake discovery."). The district court, however, concluded that additional

discovery was unnecessary. See Mem. Op. & Order at 21, reprinted in II J.A. at 178,

Tab 18 ("[T]he Court does not believe that allowing Plaintiff to conduct discovery

would aid his case. The Court has before it affidavits from all the defendants and all

the members of the screening panel. The affidavits support the defendants' position.").

Duffy now appeals.

II.
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We review the district court's grant of summary

judgment de novo. See Helfter v. United Parcel Serv.,

Inc., 115 F.3d 613, 615 (8th Cir. 1997). We may affirm

the district court's grant of summary judgment only if,

examining the evidence in the light most favorable to

Duffy, the record "demonstrates 'that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.'" Id.

(quoting Fed. R. Civ. P. 56(c)). While "summary judgment

should seldom be granted in employment discrimination

cases, summary judgment is proper when a plaintiff fails

to establish a factual dispute on an essential element of

her case." Helfter, 115 F.3d at 615-16 (quotations and

citations omitted).

Duffy's action against the Panel is premised on the

Panel's alleged decision to employ a less-qualified

female applicant, rather than Duffy, because of her

gender. The Due Process Clause of the Fifth Amendment to

the United States Constitution has been interpreted to

forbid the federal government from discriminating on the

basis of gender unless such discrimination is

substantially related to the achievement of an important

governmental objective. See Davis v. Passman, 442 U.S.

228, 234-35 (1979). In Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court

recognized in the Constitution and the general federal

question jurisdictional statute, 28 U.S.C. § 1331, an

inherent cause of action for damages against federal

actors for violations of federal constitutional rights.

See Bivens, 403 U.S. at 396 ("it is well settled that

where legal rights have been invaded, and a federal

statute provides for a general right to sue for such
-19-

invasion, federal courts may use any available remedy to

make good the wrong done" (quotations, citation, and

alteration omitted)). Duffy's claim of employment

discrimination is, accordingly, a cognizable Bivens

action. See Davis, 442 U.S. at 244 (congressman's

secretary could pursue Bivens action against employer

when she was dismissed solely because of her gender).

A.
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The Panel has asserted several affirmative defenses

to support the district court's grant of summary

judgment. First, the Panel asserts that it is eligible

for absolute judicial immunity from Duffy's suit. We

disagree.

"As a class, judges have long enjoyed a comparatively

sweeping form of immunity . . . ." Forrester v. White,

484 U.S. 219, 225 (1988). This absolute immunity from

suit allows judges to fulfill their duties without

concern for their own fortunes, which helps to ensure

that their duties will be performed impartially and

completely. See id. at 223-24. Judicial immunity does

not derive from the persona of the judge, however, but

rather from the judicial acts performed by the judge.

Accordingly, while judges enjoy absolute immunity when

performing "paradigmatic judicial acts involved in

resolving disputes between parties who have invoked the

jurisdiction of a court," id. at 227, "[a]dministrative

decisions, even though they may be essential to the very

functioning of the courts, have not similarly been

regarded as judicial acts." Id. at 228.

In Forrester, the Supreme Court dealt with a nearly

identical situation as the instant case. There, a state

court judge fired a probation officer. The probation

officer brought suit, alleging racial discrimination.

The Supreme Court held that the judge's termination of an

employee was an administrative act, see id. at 229, and

that the judge was not eligible for absolute immunity.

Id. at 230. See also Bryant v. O'Connor, 848 F.2d 1064,

1067 (10th Cir. 1988) (absolute immunity not available to

federal judge sued for racial discrimination in
-21-

termination of probation officer).

In the instant matter, the Panel seeks to distinguish

Forrester because the "[a]ppointment of a chief probation

officer now involves considerations beyond the mere

administrative tasks of evaluating and promoting

employees." Appellees' Br. at 15. While this is

undoubtedly correct, we fail to see how these additional

considerations can transform an administrative decision,

albeit an extremely important administrative decision,

into a judicial one. We conclude that the district court

correctly held that the Panel is not eligible for

absolute immunity in this matter.
-22-

B.

In allowing the plaintiff's cause of action to

proceed in Bivens, the Supreme Court noted that "[t]he

present case involves no special factors counseling

hesitation in the absence of affirmative action by

Congress." 403 U.S. at 396. In the instant matter, the

Panel contends that "special factors counseling

hesitation" exist because Duffy could have filed an

administrative complaint regarding the alleged employment discrimination

under the EEO Plan for the United States District Court

for the Southern District of Iowa. See Appellees' Br. at

20. Because Duffy could have accessed the EEO Plan

remedies, the Panel suggests that Duffy's suit be

dismissed. See, e.g., Carter v. Kurzejeski, 706 F.2d

835, 839 n.5, 842-43 (8th Cir. 1983) (dismissing Bivens

action because "the arbitral and administrative

procedures recognized and created by the Civil Service

Reform Act, which provide ultimately for some judicial

review, are the exclusive means of redress from a

discharge from federal employment based on anti-union

animus, thus barring independent federal district court

jurisdiction under other statutes altogether" (emphasis

in original)). Respectfully, we must again disagree.

The administrative scheme relied on by the Panel was

instituted at the direction of the Judicial Conference.

See I J.A. at 46, Tab 5. In Krueger v. Lyng, 927 F.2d

1050 (8th Cir. 1991), we emphasized that:

Only Congress has the power to decide that

a statutory or administrative scheme will

foreclose a Bivens action. To allow an
-23-

administratively-created scheme to foreclose a

Bivens action, without some real indication that

Congress intended the administratively-created

scheme to have that result, would require us to

hold that the legislative power to foreclose a

Bivens action has been delegated--a delegation

almost certainly in violation of the separation

of powers doctrine.

Id. at 1055 (citations omitted) (emphasis added). In

this case, the Panel has presented no support that

Congress intended to delegate to the Judicial Conference

the authority 
-24-

to preempt a Bivens action in favor of administrative

remedies. We accordingly conclude that Duffy is not

forestalled from pursuing a Bivens action on this ground.

C.

Finally, the Panel argues that it is entitled to

qualified immunity from Duffy's suit. Public "officials

performing discretionary functions[] generally are

shielded from liability for civil damages insofar as

their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). "This is an objective standard,"

Swenson v. Trickey, 995 F.2d 132, 133 (8th Cir. 1993),

and its application to the circumstances of a particular

case presents a question of law. Id. We have held that

[a] right is 'clearly established' for qualified

immunity purposes if the contours of the right

are sufficiently clear that a reasonable

official would understand that what he is doing

violates that right. This is not to say that an

official action is protected by qualified

immunity unless the very action in question has

previously been held unlawful, but it is to say

that in the light of pre-existing law the

unlawfulness must be apparent.

Id. at 133-34 (quotations, citations, and alterations

omitted).

In Davis, filed in 1979, the Supreme Court made clear

that federal employees have a Fifth Amendment right to be

free of discrimination on the basis of gender. See 442
-25-

U.S. at 234-35. In Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), the Court

considered a claim of reverse discrimination on the basis

of race, and declared that "[p]referring members of any

one group for no reason other than race or ethnic origin

is discrimination for its own sake. This the

Constitution forbids." Id. at 307. It was thus well

established by 1979 both that gender discrimination was

prohibited by the constitution and that discrimination

against historically empowered groups was forbidden by

the constitution. We believe that the synthesis of these

two 
In reaching the merits of Duffy's claim, the district court's analysis was

5

somewhat enigmatic. See Mem. Op. & Order at 18-22, reprinted in II J.A. at 175-79,

Tab 18. While "we recognize that our analysis differs from that of the district court,"

Yowell v. Combs, 89 F.3d 542, 544 n.4 (8th Cir. 1996), we may "affirm the district

court on any grounds supported by the record." Id. (affirming district court's grant of

summary judgment); see also Tyus v. Schoemehl, 93 F.3d 449, 453 n.6 (8th Cir. 1996)

(holding that this Court "may affirm the district court's grant of summary judgment on

any ground supported by [the] record" (quotations and citation omitted)), cert. denied,

117 S. Ct. 1427 (1997).

-26-

concepts was readily perceivable by 1993, the time of the

Panel's alleged constitutional violation. We therefore

agree with the district court that a reasonable person

would have known, when the Panel made its CUSPO hiring

decision, that a male federal employee had a clearly

established constitutional right to be free of gender

discrimination. See Mem. Op. & Order at 18, reprinted in

II J.A. at 175, Tab 18.

The remaining question, however, is whether the

Panel's conduct violated this well-established right. As

the district court noted, "[i]t is at this point that the

defense of qualified immunity begins to look like a

ruling on the merits." Id. at 16 n.4, reprinted in II

J.A. at 173, Tab 18. Accordingly, we address the merits

of Duffy's Bivens action.5

III.

Typically, employment discrimination cases are

brought under Title VII of the 1964 Civil Rights Act, 42

U.S.C. §§ 2000e to 2000e-17. Recognizing that, by their

nature, employment discrimination claims are often

difficult to prove, the Supreme Court crafted a burden
-27-

shifting analysis for evaluating the merits of Title VII

claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and Texas Dep't of Community Affairs v. Burdine

, 450 U.S. 248 (1981). Under this analysis:

First, the plaintiff must demonstrate the

ability to prove the four elements of a prima

facie case. To make this showing, not a

difficult or onerous 
-28-

burden, the record must demonstrate that

plaintiff can prove: 1) that she is a member of

a protected class; 2) that she applied and was

qualified for a job for which the employer was

seeking applicants; 3) that she was rejected;

and 4) that after rejecting plaintiff the

employer continued to seek applicants with

plaintiff's qualifications. . . . Under Title

VII she must show that the employer hired a man

for the position. . . . The prima facie case, in

the absence of an explanation from the employer,

creates a rebuttable presumption of

discrimination.

In the second part of the McDonnell Douglas

analysis the burden shifts to the defendant who

must rebut the presumption of discrimination by

producing evidence, that the plaintiff was

rejected, or someone else was preferred, for a

legitimate, nondiscriminatory reason. This is a

burden of production not proof. The defendant

need not persuade the court, it must simply

provide evidence sufficient to sustain a

judgment in its favor. In the third and final

part of the analysis, the burden shifts back to

plaintiff once the defendant has met its burden

of production. Plaintiff must then establish

the existence of facts which if proven at trial

would permit a jury to conclude that the

defendant's proffered reason is pretextual and

that intentional discrimination was the true

reason for the defendant's actions.

Krenik v. County of Le Sueur, 47 F.3d 953, 957-58 (8th

Cir. 1995) (quotations and citation omitted). See also

Lang v. Star Herald, 107 F.3d 1308, 1311 (8th Cir. 1997)

("Once the [defendant] advances a nondiscriminatory

reason, [the plaintiff] must show, in this summary

judgment proceeding, that she has sufficient admissible
-29-

evidence from which a rational factfinder could find that

the [defendant's] proffered nondiscriminatory reason was

either untrue or not the real reason, and that

intentional discrimination was the real reason." (citing

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993);

Ryther v. KARE 11, 108 F.3d 832, 838 n.5 (8th Cir.) (en

banc), cert. denied, 117 S. Ct. 2510 (1997); Ryther, 108

F.3d at 848 n.13 (Part I.A. of concurring and dissenting

opinion, in which eight active judges joined))), petition

for cert. filed, (U.S. June 5, 1997) (No. 96-9275).
-30-

In reverse discrimination cases, several courts have

held that, to present a prima facie case, a plaintiff

must show "that background circumstances support the

suspicion that the defendant is that unusual employer who

discriminates against the majority." Murray v.

Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.

1985) (quotations and citations omitted); see also

Bishopp v. District of Columbia, 788 F.2d 781, 786 (D.C.

Cir. 1986) ("A plaintiff's minority status by itself is

sufficient in light of historical practice in the

workplace toward such socially disfavored groups to give

rise to an inference of discriminatory motivation. White

males, who as a group historically have not been hindered

in the workplace because of their race or sex, are

required to offer other particularized evidence, apart

from their race and sex, that suggests some reason why an

employer might discriminate against them." (quotations,

citations, and alterations omitted)). However, "[j]ust

because a reverse discrimination claimant cannot show the

background circumstances necessary to trigger the

McDonnell Douglas presumption does not inexorably mean

that his employer has not intentionally discriminated

against him. . . . An employee who is the victim of

intentional discrimination in such circumstances, and who

adduces sufficient evidence of that discrimination,

should be permitted to proceed beyond the prima facie

case stage of litigation." Notari v. Denver Water Dep't,

971 F.2d 585, 590 (10th Cir. 1992) (emphasis in

original).

While Duffy is statutorily exempt from bringing a

claim under Title VII, see 42 U.S.C. § 2000e-16, Duffy

nevertheless contends that we should apply the McDonnell
-31-

Douglas analysis to his Bivens claim. We agree. While

a Title VII analysis is not always identical to a

constitutional analysis, see, e.g., Johnson v.

Transportation Agency, 480 U.S. 616, 627 n.6 (1987)

(rejecting argument that "the obligations of a public

employer under Title VII must be identical to its

obligations under the constitution"), we have applied the

McDonnell Douglas analysis to a claim of employment

discrimination brought under 42 U.S.C. § 1983 as a

violation of the Fourteenth Amendment. See Richmond v.

Board of Regents of Univ. of Minn., 957 F.2d 595, 598

(8th Cir. 1992). "[A]n action under Bivens is almost

identical to an 
-32-

action under section 1983, except that the former is

maintained against federal officials while the latter is

against state officials." Sanchez v. United States, 49

F.3d 1329, 1330 (8th Cir. 1995) (per curiam) (quotations

and citations omitted); see also Chin v. Bowen, 833 F.2d

21, 24 (2d Cir. 1987) ("Both Bivens and section 1983

actions are designed to provide redress for

constitutional violations. Though the two actions are

not precisely parallel, there is a general trend in the

appellate courts to incorporate § 1983 law into Bivens

suits." (quotations, citations, and footnote omitted)).

Accordingly, we believe it proper to apply the McDonnell

Douglas analysis to Duffy's Bivens claim.

We conclude that Duffy has made a prima facie case of

employment discrimination. Duffy, a male, applied for

and was qualified for the CUSPO position that was

ultimately given to a female applicant. Duffy has

alleged three "background circumstances [to] support the

suspicion that the [Panel] is that unusual employer who

discriminates against the majority." Murray, 770 F.2d at

67 (quotations and citations omitted). These background

circumstances are: (1) that McPhillips was substantially

less qualified than Duffy; (2) Chief Judge Wolle had

mentioned an interest by someone in the Administrative

Office in the recruitment of a female; and (3) that two

members of the Panel had usually hired female law clerks.

In presenting a prima facie case, Duffy has created

a presumption that the Panel discriminated against him on

the basis of gender. To rebut this presumption, the

Panel had the burden of presenting evidence that Duffy

"was rejected, or someone else was preferred, for a

legitimate, nondiscriminatory reason." Krenik, 47 F.3d
-33-

at 958 (quotations omitted). The Panel has met this

burden. Each member of the Panel explained, in their

affidavits, that McPhillips was selected on the basis of

non-discriminatory criteria. See Wolle Aff. at 3-4, ¶ 8,

reprinted in I J.A. at 19-20, Tab 5; Vietor Aff. at 2-3,

¶ 5, reprinted in I J.A. at 99-100, Tab 6; Longstaff Aff.

at 3-4, ¶ 5, reprinted in II J.A. at 103-04, Tab 7.

These criteria include McPhillips's experience,

education, and demeanor during her interview, as well as

the strong recommendations of jurists familiar with

McPhillips's work.
-34-

Because the Panel successfully rebutted the

presumption of discrimination created by Duffy's prima

facie case, "the burden shifts back to [Duffy]" to

"establish the existence of facts which if proven at

trial would permit a jury to conclude that the

defendant[s'] proffered reason is pretextual and that

intentional discrimination was the true reason for the

defendant[s'] actions." Krenik, 47 F.3d at 958. The

only allegations Duffy has made are those that support

his prima facie case: (1) McPhillips was substantially

less qualified than Duffy; (2) Chief Judge Wolle had

mentioned an interest by someone in the Administrative

Office in the recruitment of a female; and (3) two

members of the Panel had usually hired female law clerks.

We address these allegations in turn.

In the usual course of business, an employer will

naturally hire the most qualified candidate for a

position. See Harding v. Gray, 9 F.3d 150, 153 (D.C.

Cir. 1993) ("A rational employer can be expected to

promote the more qualified applicant over the less

qualified, because it is in the employer's best interest

to do so."). Evidence that an employer hired a less

qualified candidate for a position can support a finding

that the employer's nondiscriminatory reason for the

hiring was pretextual. Cf. id. at 153-54 ("when an

employer acts contrary to his apparent best interest in

promoting a less-qualified minority applicant, it is more

likely than not that the employer acted out of a

discriminatory motive"). See also Chock v. Northwest

Airlines, Inc., 113 F.3d 861, 864 (8th Cir. 1997)

("Where, as here, the employer contends that the selected

candidate was more qualified for the position than the

plaintiff, a comparative analysis of the qualifications
-35-

is relevant to determine whether there is reason to

disbelieve the employer's proffered reason for its

employment decision. . . . [A] comparison that reveals

that the plaintiff was only similarly qualified or not as

qualified as the selected candidate would not raise an

inference of racial discrimination."). Identifying those

strengths that constitute the best qualified applicant

is, however, a role best left to employers; as we have

often noted, "the employment-discrimination laws have not

vested in the federal courts the authority to sit as

super-personnel departments reviewing the wisdom or

fairness of the business judgments made by employers,

except 
-36-

to the extent that those judgments involve intentional

discrimination." Hutson v. McDonnell Douglas Corp., 63

F.3d 771, 781 (8th Cir. 1995). This is true even when

those making employment decisions are federal judges.

In this case, Duffy contends that he was more

qualified than McPhillips for the CUSPO position because

he had more experience than McPhillips in areas such as

management training. See Appellant's Br. at 31-32. We

disagree. In light of McPhillips's competing areas of

expertise, it is not evidence of pretext that Duffy had more

experience in certain areas than did McPhillips but was

nevertheless not selected for the position. It is

inevitable that two candidates with a combined forty

years of experience as probation officers will have

different strengths. We do not see how the Panel's

preference for McPhillips's depth of experience in the

area of presentence investigation over Duffy's breadth of

experience in the areas of pretrial and supervision can

be interpreted as pretextual for gender discrimination.

See id. (contrasting applicants' qualifications).

It is uncontested that McPhillips received glowing

recommendations from Minnesota jurists, and Duffy does

not challenge the Panel members' perceptions of

McPhillips's interviewing skills. In comparing

McPhillips's objective qualifications with Duffy's, it is

apparent that McPhillips was not "substantially less

qualified" than Duffy. McPhillips had two years more

experience than Duffy as a United States Probation

Officer. While Duffy had only a bachelor's degree and a

master's degree, McPhillips had a bachelor's degree, a
Duffy contends that "a law degree was not considered as relevant for the

6

position in the vacancy announcement." Appellant's Br. at 35 n.13. We disagree. The

Vacancy Announcement specified that, as part of his duties, a CUSPO "[r]eviews,

analyzes, and interprets statutory, Judicial Conference, and Parol Commission

requirements for administration of probation and parole services . . . ." I J.A. at 25,

Tab 5. We believe that legal training would clearly be valuable to someone performing

these duties.

-37-

master's degree, and a law degree. While Duffy 6
There is no indication in the record that the Panel actually took steps to

7

specifically recruit female candidates. Indeed, in the Vacancy Announcement

published in News and Views, there is no reference to gender. Instead, the Panel

explicitly declares that "THE COURT IS AN EQUAL OPPORTUNITY

EMPLOYER." I J.A. at 25, Tab 5. We will assume, however, that a jury could find

that the indication of interest from the Administrative Office could have influenced the

Panel to recruit female applicants for the CUSPO position.

-38-

only had experience in the Southern District of Iowa,

McPhillips had experience in two larger judicial

districts, the Administrative Office, and the United

States Sentencing Commission. Under these

nondiscriminatory criteria--which the Panel was free to

rely on--McPhillips was the stronger candidate for the

CUSPO position.

Nor do we believe that the Administrative Office's

alleged interest in obtaining a diverse pool of

applicants can support a finding of pretext. See Wolle

Aff. at 1-2, ¶ 2, reprinted in I J.A. at 17-18, Tab 5

(recounting that the Administrative Office wished the

Panel to "advertise the [CUSPO] position in a publication

of national circulation to reach all persons who might be

interested so [the Panel] could have an open, nationwide,

diverse pool of qualified applicants"); Ailts Aff. at 1-

2, ¶ 3, reprinted in II J.A. at 143-44, Tab 14

(describing a statement by Chief Judge Wolle "about an

interest in the appointment of a female" to what Ailts

assumed was the CUSPO position); Duffy Aff. at 8, ¶ 20,

reprinted in II J.A. at 124, Tab 10 (contending that "the

Administrative Office was recommending an aggressive

effort on the part of the COURT to recruit minorities and

females as candidates for the Chief Probation Officer

position which was becoming vacant").7
-39-

An employer's affirmative efforts to recruit minority

and female applicants does not constitute discrimination.

See Shuford v. Alabama State Bd. of Educ., 897 F. Supp.

1535, 1553-54 (M.D. Ala. 1995) ("affirmative recruitment

is a neutral measure") (interpreting Ensley Branch,

N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1571 (11th Cir.

1994), and Peightal v. Metropolitan Dade County, 26 F.3d

1545, 1557-58 (11th Cir. 
It appears that Duffy himself would agree with this assessment of the benefits 8

of inclusive recruitment. In his resume, Duffy contends that one of his "MAJOR

ACHIEVEMENTS" is that he "[e]ncouraged hiring of women and minorities for

Probation Officer positions." I J.A. at 28, Tab 5.

-40-

1994)). An inclusive recruitment effort enables

employers to generate the largest pool of qualified

applicants and helps to ensure that minorities and women

are not discriminatorily excluded from employment. See

id. This not only allows employers to obtain the best

possible employees, but it "is an excellent way to avoid

lawsuits." Id. The only harm to white males is that they

must compete against a larger pool of qualified

applicants. This, of course, "is not an appropriate

objection," id., and does not state a cognizable harm.8

All that is left to support Duffy's allegation of

pretext is, therefore, Duffy's assertion that two of the

Panel's members have hired more female law clerks than

male law clerks. See Duffy Aff. at 11, ¶ 27, reprinted

in II J.A. at 127, Tab 10 (alleging that of Chief Judge

Wolle's eight law clerks, six have been female, and that

of Judge Longstaff's nine law clerks, eight have been

female). The district court disregarded this allegation,

concluding that "the judges' law clerk hiring practices

are irrelevant . . . ." Mem. Op. & Order at 21 n.5,

reprinted in II J.A. at 178, Tab 18.

 "Relevant evidence" is defined by Federal Rule of

Evidence 401 to be "evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less

probable than it would be without the evidence." Fed. R.

Evid. 401. Our review of the district court's
-41-

determination of relevance is extremely deferential. See

Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th Cir.

1996) ("The district court has broad discretion in ruling

on the admissibility of proffered evidence, and we review

the court's decision for an abuse of that discretion.").
-42-

We do not believe that the district court abused its

discretion in disregarding this allegation. The

employment responsibilities--and working relationship

with a judge--of a CUSPO differ dramatically from those

of a judicial law clerk. Compare Vacancy Announcement,

reprinted in I J.A. at 25, Tab 5 (detailing duties of

CUSPO), with Bishop v. Albertson's, Inc., 806 F. Supp.

897, 899-902 (E.D. Wash. 1992) (detailing duties of a

judicial law clerk). Only if we were to assume that the

Panel members had a generalized discriminatory animus

against males--a rather extraordinary bigotry to be found

in an all-male group of judges--could the judges' law

clerk hiring practices be relevant to the Panel's

decision to hire McPhillips rather than Duffy for the

CUSPO position. That these defendants hired a few more

female law clerks than male is too slender an evidentiary

reed to support such an extraordinary finding.

Standing against this lack of evidence of pretext is

a universal declaration by each Panel member that

McPhillips was not hired on the basis of her gender. See

Wolle Aff. at 3-4, ¶ 8, reprinted in I J.A. at 19-20, Tab

5; Vietor Aff. at 2-3, ¶ 5, reprinted in I J.A. at 99-

100, Tab 6; Longstaff Aff. at 3-4, ¶ 5, reprinted in II

J.A. at 103-04, Tab 7. In addition, none of the

screening committee members have alleged that gender

played any role in McPhillips's selection, and two

affirmatively declared that it did not. See Zoss Aff.

(June 25, 1996) at 6-7, ¶¶ 15-16, reprinted in II J.A.

at 153-54, Tab 16 ("At the time the committee made its

recommendation, I did not believe that either David Duffy

or John Stites were as qualified for the position as Jane

McPhillips. . . . From my knowledge of the selection
-43-

process, the gender of Jane McPhillips and David Duffy

played no part in the selection process for the chief

probation officer for the Southern District of Iowa.");

Nickerson Aff. (June 28, 1996) at 2, ¶ 2, reprinted in II

J.A. at 156, Tab 17 ("To my personal knowledge, the

screening committee served as an objective appraiser of

the qualifications of the applicants for the position.

Gender of the applicants played no role in my

consideration of the relative qualifications of each

applicant. Likewise, it is my belief that the members of

the committee held no predisposition with respect to the

gender of the applicants who would ultimately be

submitted to the court.").
-44-

 In affirming a grant of summary judgment to a

United States district judge in an employment

discrimination suit brought by a terminated probation

officer, the Tenth Circuit in Bryant v. O'Connor, 848

F.2d 1064 (10th Cir. 1988) explained that:

Summary judgment procedure is properly regarded

not as a disfavored procedural shortcut, but

rather as an integral part of the Federal Rules

as a whole, which are designed to secure the

just, speedy and inexpensive determination of

every action.

These considerations take on added

significance in the instant case since Bryant

[the plaintiff] charged a federal judge and a

judicial officer with misconduct. In Harlow v.

Fitzgerald, 457 U.S. 800, 819-20 n.35 (1982),

the Supreme Court reiterated its admonition in

Butz v. Economou, 438 U.S. 478, 507 (1978), that

"'insubstantial' suits against high public

officials should not be allowed to proceed to

trial. . . . Insubstantial lawsuits undermine

the effectiveness of government as contemplated

by our constitutional structure, and 'firm

application of the Federal Rules of Civil

Procedure' is fully warranted in such cases."

The same policy applies with at least equal

force to an action against a member of the

judiciary.

Id. at 1067-68 (quotations and citations omitted). We

agree. Because the instant case presents no questions of

material fact left in dispute, we conclude that the

district court properly granted summary judgment to the

Panel. See Fed. R. Civ. P. 56(c).
-45-

III.

Duffy contends that the district court erred in

granting summary judgment immediately, and that Duffy

should have had the opportunity to conduct discovery

prior to the entry of summary judgment. We disagree.
-46-

"'The standard of review of the district court's

refusal to compel discovery is one of gross abuse of

discretion.'" Wilson v. International Bus. Machs. Corp.,

62 F.3d 237, 240 (8th Cir. 1995) (quoting Kinkead v.

Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir.

1995)). We have explained that "Rule 56 of the Federal

Rules of Civil Procedure, which governs summary judgment,

does not require trial courts to allow parties to conduct

discovery before entering summary judgment." United

States v. Light, 766 F.2d 394, 397 (8th Cir. 1985) (per

curiam). Rather, 

[u]nder Rule 56(a), a motion for summary

judgment can be filed at any time after twenty

days from the commencement of the action or

service of the motion on the other party. The

party who is faced with a summary judgment

motion before he has conducted discovery may,

under Rule 56(f), request the court to postpone

ruling on the motion until he conducts some

discovery. However, . . . Rule 56(f) is not a

shield that can be raised to block a motion for

summary judgment without even the slightest

showing by the opposing party that his

opposition is meritorious. A party invoking its

protections must do so in good faith by

affirmatively demonstrating why he cannot

respond to a movant's affidavits as otherwise

required by Rule 56(e) and how postponement of a

ruling on the motion will enable him, by

discovery or other means, to rebut the movant's

showing of the absence of a genuine issue of

fact. Where a party fails to carry his burden

under Rule 56(f), postponement of a ruling on a

motion for summary judgment is unjustified.

Id. at 397-98 (quotations, citations, footnote and
-47-

alterations omitted) (emphasis in original); see also

Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 797-98

(8th Cir. 1996) (describing burden of party invoking Rule

56(f)).

In his Rule 56(f) affidavit, Duffy's attorney

contends that "[u]ntil [Duffy] conducts discovery and

specifically has the opportunity to depose each of the

Defendants he is not in a position where he can

reasonably make a presentation that the Plaintiff's [sic]

explanations for their actions are a pretext for unlawful

discrimination." 
-48-

Baker Aff. at 2, ¶ 4, reprinted in II J.A. at 112, Tab 8.

The district court rejected this argument, stating that

"the Court does not believe that allowing Plaintiff to

conduct discovery would aid his case. The Court has

before it affidavits from all the defendants and all the

members of the screening panel. The affidavits support

the defendants' position." Mem. Op. & Order at 21,

reprinted in II J.A. at 178, Tab 18.

Duffy has made no supportable allegations of

discrimination, and it is well settled that "Rule 56(f)

does not condone a fishing expedition" where a plaintiff

merely hopes to uncover some possible evidence of a

constitutional violation. Gardner v. Howard, 109 F.3d

427, 431 (8th Cir. 1997); see also Bryant, 848 F.2d at

1068 ("Appellant invites us to let him proceed with his

case and depose almost the entire Kansas judiciary--

proceedings that would be disruptive to the

administration of justice, based solely on his bare

assertions and in the face of strong evidence that he was

dismissed for cause. We decline the invitation. We

reject Bryant's demand for discovery as a last ditch

effort made in the 'hope' that he then will be able to

buttress his claims. We hold as we do particularly in

light of the policy considerations where a federal judge

and judicial officer are charged as defendants."). We

conclude that the district court did not abuse its

discretion in declining to compel discovery in this case.

For the foregoing reasons, we affirm the district

court's grant of summary judgment to the defendants.
-49-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.