DUFFY v. WOLLE No. 96-3210.
123 F.3d 1026 (1997)
David A. DUFFY, Appellant, v. Charles R. WOLLE; Harold D. Vietor; Ronald Longstaff, Sued as Ronald E. Longstaff, Appellees.
United States Court of Appeals, Eighth Circuit.
Rehearing and Suggestion for Rehearing Denied October 29, 1997.
Lawrence Kudej, Assistant U.S. Attorney for the Northern District of Iowa, Cedar Rapids, IA, argued, for appellee.
Before WOLLMAN and MAGILL, Circuit Judges, and GOLDBERG, Judge.
Rehearing and Suggestion for Rehearing En Banc Denied October 29, 1997.
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 the Southern 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
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
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:
Ailts Aff. (June 14, 1996) at 1-2, ¶ 3, reprinted in II J.A. at 143-44, Tab 14. Duffy contends that:
Duffy Aff. (June 13, 1996) at 8, ¶ 20, reprinted in II J.A. at 124, Tab 10.
The Panel prepared a vacancy announcement for the CUSPO position and posted it in News and Views, a bi-weekly 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 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
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 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.
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 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. 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:
Wolle Aff. at 3-4, ¶ 8, reprinted in I J.A. at 19-20, Tab 5. Judge Vietor stated that:
Vietor Aff. at 2-3, ¶ 5, reprinted in I J.A. at 99-100, Tab 6. Judge Longstaff stated that:
Longstaff Aff. at 3-4, ¶ 5, reprinted in II J.A. at 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...." 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] 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, 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
Prior to the district court's grant of summary judgment, Duffy's counsel had filed a Federal Rule of Civil Procedure 56(f)
We review the district court's grant of summary judgment de novo. See Helfter v. United Parcel Serv., Inc.,
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,
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,
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, 108 S.Ct. at 544 and that the judge was not eligible for absolute immunity. Id. at 230, 108 S.Ct. at 545. See also Bryant v. O'Connor,
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.
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, 91 S.Ct. at 2004. 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,
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,
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 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.
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,
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 U.S. at 234-35, 99 S.Ct. at 2271-72. In Regents of the University of California v. Bakke,
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.
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 shifting analysis for evaluating the merits of Title VII claims in McDonnell Douglas Corp. v. Green,
Krenik v. County of Le Sueur,
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.,
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 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,
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 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.
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,
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 master's degree, and a law degree.
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").
An employer's affirmative efforts to recruit minority and female applicants
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 determination of relevance is extremely deferential. See Gillming v. Simmons Indus.,
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.,
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 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
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,
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).
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.
"`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.,
Id. at 397-98 (quotations, citations, footnote and alterations omitted) (emphasis in original); see also Allen v. Bridgestone/Firestone, Inc.,
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
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,
For the foregoing reasons, we affirm the district court's grant of summary judgment to the defendants.
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