The Honor able Frank J. Magill was an active judge at the time this case wa s 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 t o be appointed to the position of Chie f United States Probation Officer (CUSPO) for th e United States District Court for the SouthernDistrict of Iowa. A panel of three United States Distric t Judges for-2-

the SouthernTheHonorable William G. Cambridge, Chief Judge, United States Distric t 3 Court for the District of Nebraska.
-3- Distric t of Iowa, comprised of Chief Judge Charles R

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

. Long staff (Panel), appointed a female applicant to th e CUSP O position. Because the Panel did not appoint him , Duffy subsequently brought this Bivens actionagainst the Pane l, alleging a Fifth Amendment due process violatio n for the denial of equal protection through the practic e of re verse discrimination. The district court grante d 3 summary judgment to the Panel, and Duffy now appeals. We affirm.

I.

On April 29, 1994, Edwin Ailts resigned from th e CUSPO position for the United States District Court fo r the S outhern District of Iowa. Ailts had served as a proba tion officer since 1963 and as the CUSPO for th e Souther n District of Iowa since 1974. Although Ailt s tendered his formal resignation on December 7, 1993, h e had n otified the Panel during the Fall of 1993 of hi s intention to resign.

Th e Panel had the statutory authority to appoint a
succ essor to Ailts to fill the CUSPO position in th e Souther n District of Iowa. See 18 U.S.C. § 3602. O n Septe mber 30 and October 1, 1993, Chief Judge Woll e atte nded a conference in Washington, D.C., presented b y the Administrative Office of the United States Courts

. While at the conference, Chief Judge Wolle st ates that he-4-

was i nformed that when [the Panel] needed t o select a replacement for Edwin Ailts, our chief probation officer, [the Panel] should advertis e the p osition in a publication of nationa l circu lation to reach all persons who might b e inter ested so [the Panel] could have an open , nat ionwide, diverse pool of qualifie d 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 recount s that:

At some time following the time I informed th e [Panel] of my intention to retire I had a passing conversation with Judge Charles Wolle

. At th at time he had recently returned fro m Washington, D.C. He made a comment that whil e in Washington he had received information about an interest in the appointment of a female. At this time I cannot recall the specific entit y th at he indicated expressed that interest t o him. I assumed at that time that he wa s referring to the Chief Probation Office r pos ition which would be vacated upon my reti rement since I had only recently indicate d myintention to retire and I was unaware of any other vacant positions. This was a brie f con versation with Judge Wolle and the commen t was made by him in passing.

Ail ts Aff. (June 14, 1996) at 1-2, ¶ 3, reprinted in I I J.A. at 143-44, Tab 14. Duffy contends that:

In October of 1993 I had a con versation with Mr. Ailts. During that conversation he informed me that Charles Wolle, the Chief Judge of th e COUR T, had recently returned from a conferenc e in Washington with the Administrative Office of the United States COURTS. He informed Mr. Ailts that the Administrative Office was recommendin g an aggressive effort on the pa rt of the COURT to recruit minorities and females as candidates for the Chief Probation Officer position which wa s becoming vacant.
Duffy Aff. (June 13, 1996) at 8, ¶ 20, reprinted in I I-6-

J.A. at 124, Tab 10.

The Panel prepared a vacancy announcement for th e CUSPO position and posted it in News and Views , a bi

week lypublication of the Probation Division of th e Admi nistrative Office of the United States Courts tha t was circulated nationwide to all probation of ficers. The vacancy announcement stated that, to be quali fied for the-7-

CUSP O position, an applicant must possess "[a] 4-yea r degr ee from an accredited college or university wit h sp ecialization in one or more of the social science s approp riate to the position to be filled. An advance d degree in an appropriate area is preferred. In addition

. . . applicants must possess [at least six] years o f specialized experience . . . ." I J.A. at 25, Tab 5

. The required "specialized experience" include d "[ p]rogressivelyresponsible experience, includin g
ma nagement responsibility, in the investigation , super vision, counseling, and guidance of offenders i n
comm unitycorrections or pretrial programs." Id. Th e vacancy an nouncement also explained that, as part of his duti es, a CUSPO "[r]eviews, analyzes, and interpret s statutory, Judicial Conference, and Parol Commissio n requirements for administration of probation and parol e services; promulgates policies, procedures an d guidelines needed to meet these requirements . . . ." Id.

The Panel created a screening committee to revie w appl ications for the CUSPO position. The screenin g committee members included Judge Longstaff, Ailts, Do n Nickers on, who was the United States Attorney for th e South ern District of Iowa, and Paul Zoss, who was th e Fede ral Public Defender for the Southern District o f Iowa. The screening committee was to select three t o
se ven of the best qualified candidates for the CUSP O position and refer those applicants to the Panel.

The screening committee received sixteen application s for the CU SPO position. As a courtesy to applicants who
were currently employed as probation officers for th e So uthern District of Iowa, the screening committe e-8-

elected to forward all such applicants to the Panel fo r consideration. The screening committee ultimatel y forwarded three names to the Panel: Jane McP hillips, who was a Supervising United States Probation Off icer for the Dist rict of Minnesota; Duffy, who was a Supervisin g United States Probation Officer for the South ern District of Iowa; a nd John Stites, who was a Senior United States Probation Officer for the Southern District of Iowa.-9-

McPhillips had worked as a United States Probatio n Officer si nce 1972, and had been a supervising probation offi cer since 1990. During her tenure, McPhillips ha d served in the District of Minnesota office, the Northern District of Texas office, and in temporary du ty positions with the Administrative Office of the United State s Cou rts and the United States Sentencing Commission

. McPh illips held a bachelor's degree in psychology, a master's degree in counseling and guidance, and a juri s doctorate. McPhillips had been a licensed at torney since 1985, and was a member of the state bar of Texas.
Duffy had served as a United States Probation Office r since 1 974, and had served as a supervising probatio n officer since 1990. Duffy had served only in th e South ern District of Iowa. Duffy held a bachelor' s degree in psychology, a master's degree with an emphasis in rehabilitation, psychological counseling, an d correction s, and in 1971-72 had participated in, but had not completed, an educational and school psycholog y doctoral program.
A full description o f Stites's qualifications is not containe d in the record. See I J.A. at 34-36 , Tab 5 (incomplete resume of John Stites). It appea rs, however, that Stites had less experience than either M cPhillips or Duffy as a probation officer, see id. at 34 (noting that Stites was employed in 1976 by the Bi-State Metropolitan Planning C ommission in Rock Island, Illinois), and there is no indi cation that Stites had ever earned an advanced degree. The Panel interviewe d each of the applicants. While the members of the Panel were personally familiar wit h-10-

Duffy's and Stites's work, Panel members cont acted judges in M innesota to obtain other jurists' impressions o f McPh illips. Judge Vietor explained that he "spok e pers onallywith Judge James Rosenbaum and Senior Judg e Harry MacLaughlin of the United States Distri ct Court for the Dis trict of Minnesota," and that they "spoke ver y well of Ms. McPhillips'[s] abilities and unequivocall y
an d highly recommended her for the position of Chie f Probation Officer." Vietor Aff. (Apr.-11-

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

. Ju dge Longstaff stated that he had spoken with Chie f Judge M agnuson and Judge Rosenbaum of the District o f Minn esota. "Both judges were highly complimentary i n the ir praise and recommendation of Ms. McPhillips. " Lon gstaff Aff. (May 1, 1996) at 4, ¶ 5, reprinted in I I J.A. at 104, Tab 7.

In addition, the Panel received recommendation s regarding McPhillips and Duffy from their curren t
su pervisors. Ailts, Duffy's outgoing supervisor , recomme nded that Duffy be appointed. See Ailts Aff. a t 2, ¶ 5, r eprinted in II J.A. at 144, Tab 14. Glen n Bask field, CUSPO for the District of Minnesota an d McPhillips's supervisor, advised the Panel th at "there is litt le doubt that [McPhillips] would make an excellen t Chief Probation Officer." I J.A. at 41 , Tab 5

.
The Panel unanimously agreed to appoint McPhillips t o the positi on of CUSPO for the Southern District of Iowa. Each membe r of the Panel has unequivocally declared that McPhillips was the best candidate for the position, an d that her g ender did not play a role in their decision to appoint her. Chief Judge Wolle stated that:

At no time during the selection process di d gender play any role in our co nsideration of the appli cants. I voted to select McPhillip s becau se she was the most qualified person b y re ason of her experience, her education, he r dem eanor during the interview, the letters o f reference received with her resume, and th e uniformlyvery complimentary comments of th e Minnesota district judges and court officers we phoned.-12-

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

I independently concluded that Ms. McPhillip s was the best qualified applicant for th e posit ion. I was impressed with Ms

. Mc Phillips'[s] experience, which include d sig nificant supervisory responsibility in th e Distr ict of Minnesota. I was also impresse d with Ms. McPhillips'[s] academ ic accomplishments which included going to law school and-13-

obtai ning a juris doctor degree while she wa s se rving as a probation officer in Minnesota

. Ms. McPhillips'[s] attributes also include d extensive legal and practical experience wit h the Federal Sentencing Guidelines. One or more of th e Minnesota judges I spoke with als o commented on her excellent interpersonal skill s with staff, and I considered that a goo d attribute. In reaching my conclusion I did not in any way consider the gender of Ms. McPhillips or t he gender of Mr. Duffy and Mr. Stites

. Gende r of the three was not mentioned i n discussions among Chief Judge Wolle, Judg e 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 th e best qualified person of the three finalis t applicants to assume the responsibilities o f Chief Probation Officer. In coming to thi s concl usion, I was influenced not only by Ms

. McP hillips'[s] strong academic background an d work experience but also by the recommendations whichI had received during phone conversations fromChief Judge Magnuson and Judge Rosenbaum .

. . . Ms. McPhillips'[s] gender played no rol e whatsoever in the [Panel]'s deliberations. Longstaff Aff. at 3-4, ¶ 5, reprinted in103-04, Tab 7 . On March 14, 1994, the Panel entered an order appointing McPhill ips as CUSPO for the So uthern District of Iowa beginning May 2, 1994. See I J.A. at 43 , Tab 5

. Subsequently, Duffy spoke with Judge Longstaff durin g
a fi fty-minute meeting about the Panel's decision t o appoint another candidate, and Judge Longstaf f 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 betwee n Chief J udge Wolle and Duffy, Chief Judge Wolle state d that he understood Duffy's disappointment, an d "enc ouraged [Duffy] to pursue what he called [Duffy's ] 'cut ting edge ideas' for the operation, management an d development of the PROBATION OFFICE which [Duffy]-15-

had p resented in [his] interview." Id. at 10-11, ¶ 26 , reprinted in II J.A. at 126-27, Tab 10.
Althoug hthe Southern District of Iowa had in plac e
an E qual Employment Opportunity Plan (EEO Plan) tha t provi ded a mechanism for pursuing complaints o f emp loyment discrimination, Duffy did not access an y admi nistrative remedies. Instead, on March 8, 1996 , Duffyfiled a Bivens action against the Panel. In hi s comp laint, Duffy alleged that the Panel had violate d Du ffy's Fifth Amendment right to due process when i t denied Duffy equal protection under the law by hiring a "substantiallyless qualified female applicant" becaus e of her gend er. See Compl. at 4, ¶ 11, reprinted in I J.A. at 6, Tab 2. Duffy sought a declaratory judgmen t that the Panel had acted unconstitutionally, a n injunction requiring his appointment to the CUSP O posit ion, unspecified monetary damages, and costs an d attorne y'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 distric t court. Because the motion had been supported b y affidavits and accompanying documents, the di strict court
cons trued the motion as a motion for summary judgment

. See Mem. Op. & Order (Aug. 5, 1996) at 1, rep rinted in II J.A. at 158, Tab 18. The district court reje cted several of th e Panel's arguments, including the Panel' s cont ention that Duffy was precluded from bringing a Bi vens action because of the availability o f administrative remedies, see id. at 11, reprinted in I I J.A

. at 168, Tab 18, and the Panel's claim of absolut e immun ity. See id. at 14, reprinted in II J.A. at 171 ,-16-

Tab 18. After conducting an analysis of qualifie d immunity, the district court granted summary judgment to the Panel. Id. at 21-22, reprinted inII J.A . at 178-79, Tab 18 ("because Plaintiff has insufficient support fo r his claims, and because policy considerations mandate a 'fir mapplication of the Federal Rules of Civi l Procedure,' Butz v. Economou , 438 U.S. 478, 508 (1978) , to avoid subjecting public officials to the expense an d distractio n of trial, the defendants' motion to dismiss, tre ated as a motion for summary judgment, will b e 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 just ifythe party's opposition, the court may refuse the application fo r 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 j udgment, 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. SeeBaker Aff

. (June17, 1996) at 2, ¶ 4, reprinted inII 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 posit

ion where he can reasonably make a presentation that the Plaintiff's [sic] explan ations for their actions are a pretext for unlawful discrimination."); Mem. i n Opp 'n to the Mot. to Dismiss (June 20, 1996) at 28, § VII ("[Duffy] further request s thatsince the affidavits of the Defendants do not address the prima facie claim o f gender discrimination of the Plaintiff that [the Court] either deny the s ummary 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. SeeMem. Op. & Order at 21, reprinted inII J.A. at 178, Tab 18 ("[T]he Court does not believe that allowing Plaintiff to conduct discovery wouldaid his case. The Court has before it affidavits from all the defendants and all the members of the screening panel. The aff idavits support the defendants' position."). Duffy now appeals.

II.-18-

We review the district court's grant of summar y judgme nt de novo. See Helfter v. United Parcel Serv. , Inc

. , 115 F.3d 613, 615 (8th Cir. 1997). We may affir m the district court's grant of summary judgment only if , examini ng the evidence in the light most favorable t o Duffy, the record "demonstrates 'that there i s no genuine issue as to any material fact and that the moving part y is entitl ed to a judgment as a matter of law.'" Id

. (quoting F ed. R. Civ. P. 56(c)). While "summary judgment shoul d seldom be granted in employment discriminatio n cases, sum

mary judgment is proper when a plaintiff fails to establish a factual dispute on an essentia l element of her cas e." Helfter , 115 F.3d at 615-16 (quotations an d citations omitted).
Duffy's action against the Panel is premised on th e Pan el's alleged decision to employ a less-qualifie d fema le applicant, rather than Duffy, because of he r gender. The Due Process Clause of the Fifth Amendment to the United States Constitution has been interpreted t o forbid the federal government from discriminating on the bas is of gender unless such discrimination i s substantia lly related to the achievement of an important governmental objective. See Davis v. Passman , 442 U.S

. 22 8, 234-35 (1979). In Bivens v. Six Unknown Fed

. Narcotics Agents , 403 U.S. 388 (1971), the S upreme Court
reco gnized in the Constitution and the general federa l ques tion jurisdictional statute, 28 U.S.C. § 1331, a n inhe rent cause of action for damages against federa l actors for violations of federal constitutional rights

. See B ivens , 403 U.S. at 396 ("it is well settled tha t where legal rights have been invaded, and a federa l stat ute provides for a general right to sue for suc h-19-

invasion, federal courts may use any available remedy to make good the wrong done" (quotations, citation, an d al teration omitted)). Duffy's claim of employmen t discrimination is, accordingly, a cognizable Biven s action. See Davis , 442 U.S. at 244 (congressman' s
secre tarycould pursue Bivens action against employe r when she was dismissed solely because of her gender).

A.-20-

The Panel has asserted several affirmative defense s to s upport the district court's grant of summar y judgmen t. First, the Panel asserts that it is eligibl e for absolute judicial immunity from Duffy's suit. W e disagree.

"As a class, judges have long enjoyed a comparativel y
swe eping form of immunity . . . ." Forrester v. White , 484 U.S . 219, 225 (1988). This absolute immunity fro m suit allows judges to fulfill their duties withou t
concern for their own fortunes, which helps to ensur e that their duties will be performed impartially an d complet ely. See id. at 223-24. Judicial immunity doe s not de rive from the persona of the judge, however, bu t rather from the judicial acts performed by the judge

. Accordingly, while judges enjoy absolute immunity whe n performing "paradigmatic judicial acts involved i n
reso lving disputes between parties who have invoked th e juri sdiction of a court," id. at 227, "[a]dministrativ e decisions, even though they may be essential to the very func tioning of the courts, have not similarly bee n regarded as judicial acts." Id. at 228.

In Forr ester , the Supreme Court dealt with a nearl y identical situation as the instant case. There, a state court j udge fired a probation officer. The probatio n officer brought suit, alleging racial discrimination

. The Supreme Court held that the judge's termi nation of an employe e was an administrative act, see id. at 229, an d 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 feder al judge sued for racial discrimination i n-21-

termination of probation officer).

Inthe instant matter, the Panel seeks to distinguis h Forrester because the "[a]ppointment of a chi ef probation off icer now involves considerations beyond the mer e administrative tasks of evaluating and promotin g employees." Appellees' Br. at 15. While this i s undoubtedl y correct, we fail to see how these additional considerat ions can transform an administrative decision, albeit an extremely important administrative decision , into a judicial one. We conclude that the di strict court
cor rectlyheld that the Panel is not eligible fo r absolute immunity in this matter.-22- B.

In allowing the plaintiff's cause of action t o proc eed in Bivens , the Supreme Court noted that "[t]h e pre sent case involves no special factors counselin g hesi tation in the absence of affirmative action b y Congress." 403 U.S. at 396. In the instant matter, the Panel contends that "special factors counselin g hesi tation" exist because Duffy could have filed a n administrative complaint regarding the alleged employment discrimination under t he EEO Plan for the United States District Cour t for the Southern District of Iowa. See Appel lees' Br. at 20. Because Duffy could have accessed the EEO Pla n
reme dies, the Panel suggests that Duffy's suit b e dismis sed. See, e.g. , Carter v. Kurzejeski , 706 F.2 d 835, 839 n.5, 842-43 (8th Cir. 1983) (dismissing Biven s action because "the arbitral and administrativ e proc edures recognized and created by the Civil Servic e Refo rmAct, which provide ultimately for some judicia l
rev iew, are the exclusive means of redress from a disch arge from federal employment based on anti-unio n animus, thus barring independent federal district cour t jurisdiction under other statutes altogether" (emphasi s in original)). Respectfully, we must again disagree.

The administrative s cheme relied on by the Panel was inst ituted at the direction of the Judicial Conference

. See I J. A. at 46, Tab 5. In Krueger v. Lyng , 927 F.2 d 1050 (8th Cir. 1991), we emphasized that:

On lyCongress has the power to decide tha t a statutory or administrative scheme wil l forec lose a Bivens action. To allow a n-23-

administratively-created scheme to foreclose a Bivens action, without some re al indication that Congress intended the administratively-create d scheme to have that result, would require us to hold that the legislative power to foreclose a Bivens action has been delegated--a delegatio n almost certainly in violation of the separation of powers doctrine. Id. at 1055 (citations omitted) (emphasis added). I n this case, the Panel has presented no support tha t Congress i ntended to delegate to the Judicial Conference the authority-24-

to pree mpt a Bivens action in favor of administrativ e
re medies. We accordingly conclude that Duffy is no t forestalled from pursuing a Bivens action on this ground.

C.
Finally, the Panel argues that it is entitled t o qualified immunity from Duffy's suit. Public "officials performing discretionary functions[] generally ar e shie lded from liability for civil damages insofar a s th eir conduct does not violate clearly establishe d statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgera ld , 457 U.S. 800, 818 (1982). "This is an objective standard, " Swenso n v. Trickey , 995 F.2d 132, 133 (8th Cir. 1993) , and its ap plication to the circumstances of a particular case prese nts a question of law. Id. We have held that
[a] right is 'clearly establis hed' for qualified immun itypurposes if the contours of the righ t are sufficiently clear that a reasonabl e official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualifie d immunityunless the very action in question has previouslybeen held unlawful, but it is to say that in the light of pre-existing law th e unlawfulness must be apparent.

Id. a t 133-34 (quotations, citations, and alteration s omitted).

In Davis , filed in 1979, the Supreme Court made clea r that federal employees have a Fifth Amendment right to be free of discrimination on the basis of gender. See 44 2-25-

U.S. at 234-35. In Regents of the University o f Calif ornia v. Bakke , 438 U.S. 265 (1978), the Cour t considered a claim of reverse discrimination on the basis of race, and declared that "[p]referring members of an y one group for no reason other than race or ethnic origin is disc rimination for its own sake. This th e Const itution forbids." Id. at 307. It was thus wel l esta blished by 1979 both that gender discrimination wa s prohibited by the constitution and that discriminatio n against historically empowered groups was forbidden b y the constitution. We believe that the synthe sis of these twoInreaching the merits of Duffy's claim, the district court's analysis wa s 5 somewhat enigmatic. SeeMe m. Op. & Order at 18-22, reprinted inII J.A. at 175-79, Tab 18. Whi le "we recognize that our analysis differs from that of the district court," Yowell v. C ombs , 89 F.3d 542, 544 n.4 (8th Cir. 1996), we may "affirm the distric t court o n 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 thisCourt "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 therefor e agre e with the district court that a reasonable perso n would have known, when the Panel made its CUSPO hirin g de cision, that a male federal employee had a clearl y esta blished constitutional right to be free of gende r discrimination. See Mem. Op. & Order at 18, reprinted in II J.A. at 175, Tab 18.

The r emaining question, however, is whether th e Panel's conduct violated this well-establishe d right. As the district court noted, "[i]t is at this po int that the defen se of qualified immunity begins to look like a rulin g on the merits." Id. at 16 n.4, reprinted in I I J.A. at 17 3, Tab 18. Accordingly, we address the merits of Duffy's Bivens action. 5

III.

Ty pically, employment discrimination cases ar e brought un der 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 ofte n diff icult to prove, the Supreme Court crafted a burde n-27-

shifting a nalysis 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. Burdin e , 450 U.S. 248 (1981). Under this analysis: First, the plaintiff must demonstrate th e abi lityto prove the four elements of a prim a fa cie case. To make this showing, not a difficult or onerous-28-

burden, the record must demonstrate tha t 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 wa s seeki ng applicants; 3) that she was rejected ; and 4 ) that after rejecting plaintiff th e employer continued to seek applicants wit h pla intiff's qualifications. . . . Under Titl e VII she must show that the employer hired a man for the position. . . . The pr ima facie case, in the absence of an explanation from the employer, creates a rebuttable pres umption o f discrimination.
In th e 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 wa s rejec ted, or someone else was preferred, for a legitimate, nondiscriminatory reason. This is a burde n of production not proof. The defendan t need not persuade the court, it must simpl y provide evidence sufficient to sustain a judg ment in its favor. In the third and fina l part of the analysis, the burden shifts back to plaintiff once the defendant has met its burden of production. Plaintiff must then establis h the existence of facts which if proven at trial would permit a jury to conclude that th e defendant's proffered reason is pretextual an d that intentional discrimination was the tru e reason for the defendant's actions.

Krenik v. County of Le Sueur , 47 F.3d 953, 957-58 (8t h Cir. 1995) (quotations and citation omitted). See als o Lang v. St ar Herald , 107 F.3d 1308, 1311 (8th Cir. 1997) ("Once the [defendant] advances a nondiscriminator y reas on, [the plaintiff] must show, in this summar y judgment proceeding, that she has sufficient admissibl e-29-

evidence from which a rational factfinder cou ld find that the [defen dant's] proffered nondiscriminatory reason was eith er untrue or not the real reason, and tha t intentiona l discrimination was the real reason." (citing St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993); Ryt her v. KARE 11 , 108 F.3d 832, 838 n.5 (8th Cir.) (e n banc), cer t. denied , 117 S. Ct. 2510 (1997); Ryther , 108 F.3d at 84 8 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 discrimin ation cases, several courts have held that, to present a prima facie case, a plaintif f must show "that background circumstances support th e suspicion that the defendant is that unusual employer who discr iminates against the majority." Murray v

. Thistledow n Racing Club, Inc. , 770 F.2d 63, 67 (6th Cir. 19 85) (quotations and citations omitted); see als o Bishopp v. District of Columbia , 788 F.2d 781, 786 (D.C. Cir. 1986) ("A plaintiff's minority status by itself i s suff icient in light of historical practice in th e workplace toward such socially disfavored groups to give rise to an inference of discriminatory motiva tion. White males, who as a group historically have not b een hindered in the workplace because of their race or sex, ar e required to offer other particularized evidence, apar t from their race and sex, that suggests some r eason why an employer might discriminate against them." (quotations , citations, and alterations omitted)). However, "[j]us t because a reverse discrimination claimant can not show the background circumstances necessary to trigger th e McDonnell Douglas presumption does not inexorably mea n that his employer has not intentionally discriminate d against him . . . . An employee who is the victim o f intentional discrimination in such circumstan ces, and who adduces sufficient evidence of that discrimination , should be permitted to proceed beyond the prima faci e case stage of litigation." Notari v. Denver Water Dep't , 971 F.2d 585, 590 (10th Cir. 1992) (emphasis i n original).

While Duffy is statutorily exempt from bringing a claim under Title VII, see 42 U.S.C. § 2000e-16, Duff y neverthele ss contends that we should apply the McDonnell-31-

Dougl as analysis to his Bivens claim. We agree. Whil e
a Title VII analysis is not always identical to a constitutional analysis, see, e.g. , Johnson v

. Tran sportation Agency , 480 U.S. 616, 627 n.6 (1987 ) (rej ecting argument that "the obligations of a publi c emp loyer under Title VII must be identical to it s obligations under the constitution"), we have applied the McDo nnell Douglas analysis to a claim of employmen t 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, 59 8 (8th Cir. 1992). "[A]n action under Bivens is almos t identical to an-32-

ac tion under section 1983, except that the former i s maintainedagainst federal officials while the latter is against state officials." Sanchez v. United States , 4 9 F.3d 1329, 1330 (8th Cir. 1995) (per curiam) (quotations and citati ons omitted); see also Chin v. Bowen , 833 F.2d 21, 24 (2d Cir. 1987) ("Both Bivens and section 198 3 actions are designed to provide redress fo r
cons titutional violations. Though the two actions ar e not pre cisely parallel, there is a general trend in th e appe llate courts to incorporate § 1983 law into Biven s suits." (quotations, citations, and footnote omitted))

. Accordingl y, 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 o f empl oyment discrimination. Duffy, a male, applied fo r and was qualified for the CUSPO position that wa s ultimatelygiven to a female applicant. Duffy ha s alleged th ree "background circumstances [to] support the suspicion that the [Panel] is that unusual employer wh o discriminates against the majority." Murray , 770 F.2d at 67 (quotat ions and citations omitted). These background circumstan ces are: (1) that McPhillips was substantially le ss qualified than Duffy; (2) Chief Judge Wolle ha d ment ioned an interest by someone in the Administrativ e Offic e in the recruitment of a female; and (3) that tw o members of the Panel had usually hired female law clerks. In pres enting a prima facie case, Duffy has create d a presumption that the Panel discriminated ag ainst him on the basis of gender. To rebut this presumption, th e Pane l had the burden of presenting evidence that Duff y "was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Krenik , 47 F.3 d-33-

at 9 58 (quotations omitted). The Panel has met thi s burde n. Each member of the Panel explained, in thei r 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 inI J.A. at 99-100, Tab 6; Lo ngstaff 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 wit h McPhillips's work.-34-

Because the Panel successfully rebutted th e presumption of discrimination created by Duffy's prim a facie case, "the burden shifts back to [Duffy]" t o "e stablishthe existence of facts which if proven a t tria l would permit a jury to conclude that th e defen dant[s'] proffered reason is pretextual and tha t inte ntional discrimination was the true reason for th e defen dant[s'] actions." Krenik , 47 F.3d at 958. Th e only allegations Duffy has made are those that suppor t his prima facie case: (1) McPhillips was substantiall y le ss qualified than Duffy; (2) Chief Judge Wolle ha d ment ioned an interest by someone in the Administrativ e Of fice in the recruitment of a female; and (3) tw o members of the Panel had usually hired female law clerks. We address these allegations in turn. In th e usual course of business, an employer wil l natu rallyhire the most qualified candidate for a posit ion. See Harding v. Gray , 9 F.3d 150, 153 (D.C

. Cir. 1993) ("A rational employer can be expected t o prom ote the more qualified applicant over the les s qualified, because it is in the employer's best interest to do so."). Evidence that an employer hired a les s qualified candidate for a position can support a finding that the employer's nondiscriminatory reason for th e hir ing was pretextual. Cf. id. at 153-54 ("when a n employer acts contrary to his apparent best interest i n promoting a less-qualified minority applicant , it is more likelythan not that the employer acted out of a disc riminatorymotive"). See also Chock v. Northwes t Air lines, Inc. , 113 F.3d 861, 864 (8th Cir. 1997 ) ("Where, as here, the employer contends that the selected cand idate was more qualified for the position than th e plaintiff, a comparative analysis of the qualification s-35-

is re levant to determine whether there is reason t o di sbelieve the employer's proffered reason for it s empl oyment decision. . . . [A] comparison that reveal s that the plaintiff was only similarly qualifi ed or not as qual ified as the selected candidate would not raise a n inference of racial discrimination."). Ident ifying those strengths that constitute the best qualified applican t is, however, a role best left to employers; as we hav e often noted, "the employment-discrimination l aws have not vest ed in the federal courts the authority to sit a s super-personnel departments reviewing the wisdom o r fair ness of the business judgments made by employers , except-36-

to t he extent that those judgments involve intentiona l disc rimination." Hutson v. McDonnell Douglas Corp. , 6 3 F.3d 771, 781 (8th Cir. 1995). This is true even whe n those making employment decisions are federal judges.

In this case, Duffy contends that he was mor e qualified than McPhillips for the CUSPO position because he had more experience than McPhillips in areas such a s
mana gement training. See Appellant's Br. at 31-32. W e disa gree. In light of McPhillips's competing areas o f experti se, it is not evidence of pretext that Duffy had mor e experience in certain areas than did McPhillips but wa s nevertheless not selected for the position. It i s inev itable that two candidates with a combined fort y year s of experience as probation officers will hav e different strengths. We do not see how the Panel' s pref erence for McPhillips's depth of experience in th e area of presentence investigation over Duffy' s breadth of experience in the areas of pretrial and supervision ca n be interpreted as pretextual for gender discrimination

. See id. (contrasting applicants' qualifications).

It is uncontested that McPhillips received glowin g recommendations from Minnesota jurists, and Duffy doe s not c hallenge the Panel members' perceptions o f McPhillips's interviewing skills. In comparin g McPhillips's objective qualifications with Du ffy's, it is appa rent that McPhillips was not "substantially les s qual ified" than Duffy. McPhillips had two years mor e expe rience than Duffy as a United States Probatio n Officer. While Duffy had only a bachelor's degree and a mast er's degree, McPhillips had a bachelor's degree, aDuffy contends that "a law degree was not considered as relevant for th e 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 Commissio n requirement s for administration of probation and parole services . . . ." I J.A. at 25 , Tab 5. We believe that legal training would clearly be valu able to someone performing these duties.
-37- master's degree, and a law degree. While Duffy 6Thereis no indication in the record that the Panel actually took steps t o 7 spec ificallyrecruit female candidates. Indeed, in the Vacancy Announcemen t publish edin News and Views , there is no reference to gender. Instead, the Pane l explicitlydeclares that "THE COURT IS AN EQUAL OPPORTUNIT Y EM PLOYER." 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 ha d experience in the Southern District of Iowa , McPhillips had experience in two larger judicia l dist ricts, the Administrative Office, and the Unite d States Sentencing Commission. Under thes e nondiscriminatory criteria--which the Panel was free t o rely on--McPhillips was the stronger candidate for th e CUSPO position.

Nor do we believe that the Administrative Office' s alle ged interest in obtaining a diverse pool o f applica nts can support a finding of pretext. See Woll e Aff. at 1-2 , ¶ 2, reprinted in I J.A. at 17-18, Tab 5 (reco unting that the Administrative Office wished th e 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"); Ailt s Aff. at 1- 2, ¶ 3, reprinted in II J.A. at 143-44, Tab 1 4 (des cribing a statement by Chief Judge Wolle "about a n intere st in the appointment of a female" to what Ailt s
assum ed was the CUSPO position); Duffy Aff. at 8, ¶ 20 , reprinted inII J.A. at 124, Tab 10 (contendi ng that "the Administrative Office was recommending an aggressiv e effort on the part of the COURT to recruit mi norities and fema les as candidates for the Chief Probation Office r position which was becoming vacant"). 7-39-

Anemployer's affirmative efforts to recruit minorit y and female applicants does not constitute dis crimination. See S huford 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 "MAJO R ACHIEVEME NTS" is that he "[e]ncouraged hiring of women and minorities fo r Probation Officer positions." I J.A. at 28, Tab 5.
-40- 1994)). An inclusive recruitment effort enable s empl oyers to generate the largest pool of qualifie d applicants and helps to ensure that minorities and women
are not discriminatorily excluded from employment. Se e id. This not only allows employers to obtain the bes t possible e mployees, 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 qualifie d ap plicants. This, of course, "is not an appropriat e objection," id. , and does not state a cognizable harm. 8

All t hat is left to support Duffy's allegation o f pretext is , therefore, Duffy's assertion that two of the Pane l's members have hired more female law clerks tha n mal e law clerks. See Duffy Aff. at 11, ¶ 27, reprinte d inII J.A. at 127, Tab 10 (alleging that of Chief Judge Wolle's ei ght law clerks, six have been female, and that of Judg e Longstaff's nine law clerks, eight have bee n female). The district court disregarded this allegation,
conc luding that "the judges' law clerk hiring practice s
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 o f Evidence 4 01 to be "evidence having any tendency to make the e xistence of any fact that is of consequence to th e dete rmination of the action more probable or les s probable than it would be without the evidenc e." Fed. R. Evid

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

determination of relevance is extremely defer ential. See Gillming v . Simmons Indus. , 91 F.3d 1168, 1172 (8th Cir. 1996) ("The district court has broad discreti on in ruling on the admissibility of proffered evidence, a nd we review the court' s decision for an abuse of that discretion.").-42-

We do not believe th at the district court abused its discretion in disregarding this allegation. Th e
em ployment responsibilities--and working relationshi p with a judge--of a CUSPO differ dramatically from thos e of a judicial law clerk. Compare Vacancy Announcement , reprin ted in I J.A. at 25 , Tab 5 (detailing duties o f CUSP O), with Bishop v. Albertson's, Inc. , 806 F. Supp

. 897, 89 9-902 (E.D. Wash. 1992) (detailing duties of a judic ial law clerk). Only if we were to assume that th e Panel members had a generalized discriminatory animu s against males--a rather extraordinary bigotry to be found in an a ll-male group of judges--could the judges' la w cler k hiring practices be relevant to the Panel' s decisio n to hire McPhillips rather than Duffy for th e CUSPO p osition. That these defendants hired a few mor e female law clerks than male is too slender anevidentiary reed to support such an extraordinary finding.
Standing against thi s lack of evidence of pretext is
a un iversal declaration by each Panel member tha t McPhillips was not hired on the basis of her gender. See Wolle Aff. at 3-4, ¶ 8, reprinted inI J.A. a t 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 I I J.A. at 103-04, Tab 7. In addition, none of th e
scre ening committee members have alleged that gende r play ed any role in McPhillips's selection, and tw o affir mativelydeclared that it did not. See Zoss Aff

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

. at 153-54, Tab 16 ("At the time the committee made it s recommendation, I did not believe that either David Duffy or John Stites were as qualified for the posi tion as Jane McPh illips. . . . From my knowledge of the selectio n-43-

proc ess, the gender of Jane McPhillips and David Duff y playe d no part in the selection process for the chie f prob ation officer for the Southern District of Iowa.") ; Nickerson Aff. (June 28, 1996) at 2, ¶ 2, rep rinted in II J.A

. at 156, Tab 17 ("To my personal knowledge, th e
scre ening committee served as an objective appraiser o f the qualifications of the applicants for the position

. Gender of the applicants played no role in my
cons ideration of the relative qualifications of eac h applicant. Likewise, it is my belief that th e members of the commit tee held no predisposition with respect to the gend er of the applicants who would ultimately b e submitted to the court.").-44-

In affirming a grant of summary judgment to a Uni ted States district judge in an employmen t discr imination suit brought by a terminated probatio n officer , the Tenth Circuit in Bryant v. O'Connor , 84 8 F.2d 1064 (10th Cir. 1988) explained that:

Summaryjudgment procedure is properly regarde d no t as a disfavored procedural shortcut, bu t rather as an integral part of the Federal Rules as a w hole, which are designed to secure th e just, speedy and inexpensive determination o f every action.
Th ese considerations take on adde d sig nificance in the instant case since Bryan t [the plaintiff] charged a federal judge and a judicial officer with misconduct. In Harlow v. Fit zgerald , 457 U.S. 800, 819-20 n.35 (1982) , the Supreme Court reiterated its admonition i n Butz v. Economou , 438 U.S. 478 , 507 (1978), that "'insubstantial' suits against high publi c offic ials should not be allowed to proceed t o tri al. . . . Insubstantial lawsuits undermin e the effectiveness of government as contemplate d byour constitutional structure, and 'fir m appli cation of the Federal Rules of Civi l Pro cedure' is fully warranted in such cases. " The s ame policy applies with at least equa l forc e to an action against a member of th e judiciary.

Id. at 1067-68 (quotations and citations omitted). W e agree. Because the instant case presents no questions of mater ial fact left in dispute, we conclude that th e dist rict court properly granted summary judgment to th e Panel. See Fed. R. Civ. P. 56(c).-45- III.
Duffy contends that the district court erred i n grant ing summary judgment immediately, and that Duff y shou ld have had the opportunity to conduct discover y prior to the entry of summary judgment. We disagree.-46-

"'The standard of review of the district court' s refu sal to compel discovery is one of gross abuse o f discretion.'" Wilson v. International Bus. M achs. Corp. , 62 F .3d 237, 240 (8th Cir. 1995) (quoting Kinkead v

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

. 1995) ). We have explained that "Rule 56 of the Federa l Rules of Civil Procedure, which governs summa ry judgment, does not require trial courts to allow partie s to conduct disc overybefore entering summary judgment." Unite d State s v. Light , 766 F.2d 394, 397 (8th Cir. 1985) (pe r curiam). Rather,

[u]n der Rule 56(a), a motion for summar y judgment can be filed at any time after twent y days from the commencement of the action o r serv ice of the motion on the other party. Th e party who is faced with a summary judgmen t mot ion before he has conducted discovery may , under Rule 56(f), request the court to postpone rulin g on the motion until he conducts som e discovery. However, . . . Rule 56(f) is not a shield that can be raised to block a motion for summaryjudgment without even the slightes t sh owing by the opposing party that hi s opposition is meritorious. A party invoking its prote ctions must do so in good faith b y aff irmativelydemonstrating why he canno t res pond to a movant's affidavits as otherwis e required by Rule 56(e) and howpostponement of a rulin g on the motion will enable him, b y discoveryor other means, to rebut the movant's showin g of the absence of a genuine issue o f fac t. Where a party fails to carry his burde n under Rule 56(f), postponement of a ruling on a motion for summary judgment is unjustified.

Id

. at 397-98 (quotations, citations, footnote an d-47-

alter ations omitted) (emphasis in original); see als o Allen v. Bridgestone/Firestone, Inc. , 81 F.3d793, 797-98 (8th Cir. 1996) (describing burden of party i nvoking Rule 56(f)).

In his Rule 56(f) affidavit, Duffy's attorne y conte nds that "[u]ntil [Duffy] conducts discovery an d spec ificallyhas the opportunity to depose each of th e Defendan ts he is not in a position where he ca n reasonably make a presentation that the Plain tiff's [sic] explanations for their actions are a pretext for unlawful discrimination."-48-

Baker Aff. at 2, ¶ 4, reprinted inII J.A. at 112, Tab 8. The district court rejected this argument, stating tha t "the Court does not believe that allowing Plaintiff t o cond uct discovery would aid his case. The Court ha s before it affidavits from all the defendants and all the members of the screening panel. The affidavits suppor t the defendants' position." Mem. Op. & Order at 21 , reprinted in II J.A. at 178, Tab 18.

Du ffyhas made no supportable allegations o f discrimination, and it is well settled that "Rule 56(f ) does not c ondone a fishing expedition" where a plaintiff merel yhopes to uncover some possible evidence of a
cons titutional violation. Gardner v. Howard , 109 F.3 d 427, 431 (8th Cir. 1997); see also Bryant , 848 F.2d a t 1068 (" Appellant invites us to let him proceed with hi s
case and depose almost the entire Kansas judiciary-

- proceedings that would be disruptive to th e admi nistration of justice, based solely on his bar e assertions and in the face of strong evidence that he was dism issed for cause. We decline the invitation. W e
re ject Bryant's demand for discovery as a last ditc h effor t made in the 'hope' that he then will be able t o buttress his claims. We hold as we do particularly i n light of t he policy considerations where a federal judge and judicial officer are charged as defendants."). W e conclude that the district court did not abuse it s discretion in declining to compel discovery i n this case.

For the foregoing reasons, we affirm the distric t court's grant of summary judgment to the defendants.-49-

A true copy.

Attest:

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

.