Appendix — Duffy v. Wolle

TABLE OF CONTENTS

TO THE APPENDIX

Opinion of the United States Court

of Appeals for the Eighth Circuit

filed August 19, 1997

Memorandum Opinion and Order

of the United States District Court

for the Southern District of lowa

filed August 5, 1996

Order of the United States Court

of Appeals for the Eighth Circuit

filed October 29, 1997

Affidavit of David Duffy

Affidavit Made Pursuant to Rule 56(f)

of the Federal Rules of Civil Procedure

Affidavit of Edwin Ailts

Affidavit of Harold Vietor

Affidavit of Ronald Longstaff

Affidavit of Charles Wolle

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 96-3210

,

V.

Charles R. Wolle, Harold D. Vietor; Ronald Longstaff,

Sued As Ronald E. Longstaff,

Appellees.

Appeal from the United States District Court

for the Southern District of lowa.

Submitted: March 13, 1997

Filed: August 19, 1997

Before WOLLMAN AND MAGILL,’ Circuit Judges, and

GOLDBERG,’ Judge.

MAGILL, Circuit Judge.

David Duffy sought to be appointed to the position of

Chief United States Probation Officer (CUSPO) for the

! The Honorable Frank J. Magill was an active judge at the

time this case was submitted and assumed senior status on

April 1, 1997, before the opinion was filed.

2 THE HONORABLE RICHARD W. GOLDBERG, Judge,

United States Court of International Trade, sitting by desig-

nation.

App. 2

United States District Court for the Southern District of

Iowa. A panel of three United States District Judges for

the Southern District of lowa, comprised of Chief Judge

Charles R. Wolle, Judge Harold D. Vietor, and Judge

Ronald E. Longstaff (Panel), appointed a female appli-

cant 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 dis-

trict court’ granted 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 lowa 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

* The Honorable William G. Cambridge, Chief Judge, United

States District Court for the District of Nebraska.

App. 3

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.

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 Washing-

ton 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 conversa-

tion 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 recom-

mending an aggressive effort on the part of the

COURT to recruit minorities and females as can-

SN aaa ti,

App. 4

didates for the Chief Probation Officer position

which was becoming vacant.

Duffy Aff. (June 13, 1996) at 8, J 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 Ad-

ministrative Office of the United States Courts that was

circulated nationwide to all probation officers. The va-

cancy 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 ap-

propriate 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. .. .” 1 J.A. at 25, Tab 5. The required “spe-

cialized experience” included “{p]rogressively responsible

experience, including management responsibility, in the

investigation, supervision, counseling, and guidance of of-

fenders in community corrections or pretrial programs.”

Id. The vacancy announcement also explained that, as

part of his duties, a CUSPO “{rleviews, analyzes, and in-

terprets statutory, Judicial Conference, and Parol Com-

mission requirements for administration of probation and

parole services; promulgates policies, procedures and

guidelines needed to meet these requirements ... .” Jd.

The Panel created a screening committee to review ap-

plications for the CUSPO position. The screening com-

mittee 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

App. 5

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 officer for the

Souther District of lowa, the screening committee elected

to forward all such applicants to the Panel for consider-

ation. The screening committee ultimately forwarded

three names to the Panel: Jane McPhillips, who was a

supervising United States Probation Officer for the Dis-

trict 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 lowa.

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 lowa. Duffy held a bachelor’s degree in psy-

chology, a master’s degree with an emphasis in rehabili-

tation, psychological counseling, and corrections, and in

.

App. 6

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 con-

tained in the record. See I J.A. at 34-36, Tab 5 (incom-

plete 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 Metropoli-

tan Planning Commission in Rock Island, Illinois), and

there is no indication that Stites had ever earned an ad-

vanced 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 per-

sonally 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 Proba-

tion Officer.” Vietor Aff. (Apr. 26, 1996) at 2, par. 4, re-

printed 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, 9 5, reprinted in II J.A. at 104, Tab 7.

In addition, the Panel received recommendations re-

garding McPhillips and Duffy from their current super-

visors. Ailts, Duffy’s outgoing supervisor, recommended

that Duffy be appointed. See Ailts Aff. at 2, ] 5, reprint-

ed in II J.A. at 144, Tab 14. Glenn Baskfield, CUSPO for

perm ci a sree

App. 7

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

lowa. Each member of the Panel has unequivocally de-

clared 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 gen-

der 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 dur-

ing the interview, the letters of reference re-

ceived with her resume, and the uniformly very

complimentary comments of the Minnesota dis-

trict judges and court officers we phoned.

Wolle Aff. at 3-4, J 8, reprinted in 1 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] experi-

ence, which included significant supervisory re-

sponsibility in the District of Minnesota. I was

also impressed with Ms. McPhillips’[s] academic

accomplishments which included going to law

school and obtaining a juris doctor degree while

she was serving as a probation officer in Minne-

sota. 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 comment-

ed on her excellent interpersonal skills with staff,

App. 8

and I considered that a good attribute. In reach-

ing 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 appli-

cants to assume the responsibilities of Chief Pro-

bation 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 re-

ceived 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, 9 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 lowa

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 present-

a ee

App. 9

ed in [his] interview.” Jd. at 10-11, | 26, reprinted in II

J.A. at 126-27, Tab 10.

Although the Southern District of lowa had in place an

Equal Employment Opportunity Plan (EEO Plan) that

provided a mechanism for pursuing complaints of em-

ployment discrimination, Duffy did not access any ad-

ministrative 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 ap-

pointment to the CUSPO position, unspecified monetary

damages, and costs and attorney’s fees. Jd. at 5-6, 7{

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 affi-

davits and accompanying documents, the district court

construed the motion as a motion for summary judg-

ment. See Mem. Op. & Order (Aug. 5, 1996) at 1, re-

printed 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 bring-

ing a Bivens action because of the availability of admin-

istrative 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. Jd. at 21-

22, reprinted in II J.A. at 178-79, Tab 18 (“because

App. 10

Plaintiff has insufficient support for his claims, and be-

cause policy considerations mandate a ‘firm application

of the Federal Rules of Civil Procedure, Butz v. Econo-

mou, 438 U.S. 478, 508 (1978), to avoid subjecting public

officials to the expense and distraction of trial, the de-

fendants’ motion to dismiss, treated as a motion for sum-

mary judgment, will be granted” (footnote omitted)).

Prior to the district court’s grant of summary judg-

ment, Duffy’s counsel had filed a Federal Rule of Civil

Procedure 56(f)* affidavit and a Memorandum in Opposi-

tion to the Motion to Dismiss expressing the need for

additional discovery. See Baker Aff. (June 17, 1996) at 2,

q 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

Plaintiffs [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, Section 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

* Rule 56(f) provides:

Should it appear from the affidavits of a party oppos-

ing 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 applica-

tion for judgment or may order a continuance to

permit ailidavits 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).

App. 11

or stay any considerations of that motion and allow the

Plaintiff to undertake discovery.”). The district court,

however, concluded that additional discovery was unnec-

essary. See Mem. Op. & Order at 21, reprinted in II J.A.

at 178, Tab 18 (“[TJhe Court does not believe that allow-

ing 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.

Il.

We review the district court’s grant of summary judg-

ment 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, exam-

ining 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.’” Jd. (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 cita-

tions 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

App. 12

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 jur-

isdictional 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 statue provides for a general right

to sue for such invasion, federal courts may use any

available remedy to make good the wrong done” (quota-

tions, 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.

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 “para-

digmatic judicial acts involved in resolving disputes be-

App. 13

tween parties who have invoked the jurisdiction of a

court,” id. at 227, “[aldministrative 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. Jd. 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 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 ad-

ministrative tasks of evaluating and promoting employ-

ees.” Appellees’ Br. at 15. While this is undoubtedly cor-

rect, we fail to see how these additional considerations

can transform an administrative decision, albeit an ex-

tremely 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.

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

App. 14

absence of affirmative action by Congress.” 403 U.S. at

396. In the instant matter, the Panel contends that “spe-

cial 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 South-

ern 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 altogeth-

er” (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, 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

App. 15

intended to delegate to the Judicial Conference the

authority to preempt a Bivens action in favor of adminis-

trative 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 lia-

bility 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 cir-

cumstances of a particular case presents a questions of

law. Id. We have held that

[a] right is ‘clearly established’ for qualified im-

munity 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 un-

lawful, 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 omit-

ted).

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. In Regents of the University of California

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

App. 16

claim of reverse discrimination on the basis of race or

ethnic origin is discrimination for its own sake. This the

Constitution forbids.” Jd. at 307. It was thus well estab-

lished 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 concepts was readily perceivable by 1993, the time

of the Panel’s alleged constitutional violation. We there-

fore agree with the district court that a reasonable per-

son 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 gen-

der discrimination. See Mem. Op. & Order at 18, reprint-

ed 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.” Jd. at 16 n.4, reprinted in II J.A. at 173,

Tab 18. Accordingly, we address the merits of Duffy’s

Bivens action.®

* In reaching the merits of Duffy’s claim, the district court’s

analysis was somewhat enigmatic. See Mem. Op. & Order at

18-22, reprinted in II J.A. at 175-79, Tab 18. While “we recog-

nize 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.” Jd. (affirming district court’s grant of summary judg-

ment); 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).

3

2

App. 17

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

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

burden, the record must demonstrate that plain-

tiff 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 con-

tinued to seek applicants with plaintiff's qualifi-

cations. ... Under Title VII she must show that

the employer hired a man for the position. .. .

The prima facie case, in the absence of an expla-

nation from the employer, creates a rebuttable

presumption of discriminations.

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 reject-

ed, or someone else was preferred, for a legiti-

mate, nondiscriminatory reason. This is a burden

of production not proof. The defendant need not

persuade the court, it must simply provide evi-

dence 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 de-

Se ee eee aen eee

———

App. 18

fendant has met its burden of production. Plain-

tiff 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 judg-

ment proceeding, that she has sufficient admissible evi-

dence 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. 2410 (1997); Ryther, 108 F.3d at

848 n.13 (Part 1.A. of concurring and dissenting opinion,

in which eight active judges joined))), petition for cert.

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

In reverse discrimination cases, several courts have

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

show “that background circumstances support the sus-

picion that the defendant is that unusual employer who

discriminates against the majority.” Murray v. Thistle-

down Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)

(quotations and citations omitted); see also Bishopp uv.

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

;

:

App. 19

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 dis-

criminate against them.” (quotations, citations, and al-

terations omitted)). However, “[jjust because a reverse

discrimination claimant cannot show the background cir-

cumstances 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 evi-

dence of that discrimination, should be permitted to pro-

ceed beyond the prima facie case state 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 McDon-

nell Louglas 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. Transporta-

tion Agency, 480 U.S. 616, 627 n.6 (1987) (rejecting argu-

ment 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). “[AJn action under Bivens is almost identical to an

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

Rr ene ee

App. 20

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 viola-

tions. 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 suspi-

cion that the [Panel] is that unusual employer who dis-

criminates 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 nondiscrimi-

App. 21

natory criteria. See Wolle Aff. at 3-4, | 8, reprinted in

I J.A. at 19-20, Tab 5; Vietor Aff. at 2-3, 4 5, reprinted

in I J.A. at 99-100, Tab 6; Longstaff Aff. at 3-4, 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 recommenda-

tions of jurists familiar with McPhillips’s work.

Because the Panel successfully rebutted the presump-

tion 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 defendantis’] 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 posi-

tion can support a finding that the employer’s nondis-

criminatory 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

App. 22

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 posi-

tion than the plaintiff, a comparative analysis of the

qualifications is relevant to determine whether there is

a reason to disbelieve the employer’s proffered reason for

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

that the plaintiff was only similarly qualified as the

selected candidate would not raise an inference of racial

discrimination.”). Identifying those strengths that con-

stitute 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 to the

extent that those judgments involve intentional discrim-

ination.” 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 man-

agement training. See Appellant’s Br. at 31-32. We dis-

agree. In light of McPhillips’s competing areas of exper-

tise, 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 presen-

tence investigation over Duffy’s breadth of experience in

App. 23

the areas of pretrial and supervision can be interpreted

as pretextual for gender discrimination. See id. (contrast-

ing applicants’ qualifications).

It is uncontested that McPhillips received glowing rec-

ommendations from Minnesota jurists, and Duffy does

not challenge the Panel members’ perceptions of McPhil-

lips’s interviewing skills. In comparing McPhillips’s ob-

jective 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.® While Duffy only had experience in

the Southern District of lowa, 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,

q 2, reprinted in I J.A. at 17-18, Tab 5 (recounting that

the Administrative Office wished the Panel to “advertise

® Duffy contends that “a law degree was not considered as

relevant for the position in the vacancy announcement.” Appel-

lant’s Br. at 35 n.13. We disagree. The Vacancy Announcement

specified that, as part of his duties, a CUSPO “[rJeviews, anal-

yzes, and interprets statutory, Judicial Conference, and Paro]

Commission requirements for administration of probation and

parole services... .” 1 J.A. at 25, Tab 5. We believe that legal

training would clearly be valuable to someone performing

theses duties.

ee ee ee eee

App. 24

the [CUSPO] position in a publication of national cir-

culation 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 candi-

dates for the Chief Probation Officer position which was

becoming vacant”).’

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. 1994)). An inclusive re-

cruitment 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

’ There is no indication in the record that the Panel actually

took steps to 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 re-

cruit female applicants for the CUSPO position.

EE EMR TONER ORR SS aT MR ORE Ee Re

App. 25

employers to obtain the best possible employees, but it

“is an excellent way to avoid lawsuits.” Jd. 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."

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 determina-

tion 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.”).

® It appears that Duffy himself would agree with this assess-

ment of the benefits of inclusive recruitment. In his resume,

Duffy contends that one of his “MAJOR ACHIEVEMENTS?’ is

that he “[e]Jncouraged hiring of women and minorities for Pro-

bation Officer positions.” I J.A. at 28, Tab 5.

a

App. 26

We do not believe that the district court abused its

discretion in disregarding this allegation. The employ-

ment 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, J 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, 14

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

ential

App. 27

Southern District of lowa.”); 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 ap-

plicants 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 mem-

bers of the committee held no predisposition with respect

to the gender of the applicants who would ultimately be

submitted to the court.”).

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 regard-

ed 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 reit-

erated its admonition in Butz v. Economou, 438

U.S. 478, 507 (1978), that “‘insubstantial’ suits

against high public officials should not be al-

lowed to proceed to trial. . . . Insubstantial

lawsuits undermine the effectiveness of govern-

ment 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

App. 28

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).

III. [sic]

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., 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 uv.

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

Rather,

[uJnder Rule 56(a), a motion for summary judg-

ment 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. How-

ever, ... Rule 56(f) is not a shield that can be

App. 29

raised to block a motion for summary judgment

without even the slightest showing by the oppos-

ing party that his opposition is meritorious. A

party invoking its projections must do so in good

faith by affirmatively demonstrating why he can-

not 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 discov-

ery or other means, to rebut the movant’s show-

ing 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 the

motion for summary judgment is unjustified.

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

ations 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 “[uJntil [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 Plaintiffs [sic] explanations for

their actions are a pretext for unlawful discrimination.”

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 discrimi-

nation, and it is well settled that “Rule 56(f) does not

condone a fishing expedition” where a plaintiff merely

a

App. 30

hopes to uncover some possible evidence of a constitu-

tional violation. Gardner v. Howard, 109 F.3d 427, 431

(8th Cir. 1997); see also Bryant, 848 F.2d at 1068 (“Ap-

pellant 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 de-

fendants.”). 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.

A true copy.

Attest:

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

App. 31

[Filed August 5, 1996]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

DAVID A. DUFFY, ) 4-96-CV-40184

)

Plaintiff, )

vs. ) MEMORANDUM

) OPINION

) AND ORDER

CHARLES R. WOLLE, )

HAROLD D. VIETOR, and )

RONALD E. LONGSTAFF, _)

)

)

Defendants.

This matter is before the Court on Defendants’ motion

to dismiss (filing 5), Defendants’ statement of material

facts (filing 6), Defendants’ memorandum in support of

the motion to dismiss (filing 8), Plaintiff's memorandum

in opposition to the motion (filing 15), Plaintiff's coun-

sel’s affidavit (filing 16), Plaintiff's statement of contest-

ed material facts (filing 17), and Defendants’ reply to

Plaintiff's resistance (filing 18). Upon due consideration

of the pleadings, the briefs, the evidence, and the case

law, the Court finds that the motion to dismiss, treated

as a motion for summary judgment, should be granted.

I. BACKGROUND

David Duffy filed this lawsuit after being an unsuccess-

ful candidate for the position of Chief United States

Probation Officer (“CUSPO”) for the Southern District of

App. 32

Iowa. Mr. Duffy has served as a United States Probation

Officer in the Southern District of Iowa since 1974, and

has worked in a supervisory capacity since 1989.

In October 1993, Mr. Edwin Ailts, then Chief United

States Probation Officer for the Southern District of

Iowa, provided written notification to the United States

District Court Judges Wolle, Vietor and Longstaff of his

intention to retire on or about May 1, 1994. Pursuant to

18 U.S.C. Section 3602’, the judges discussed the appro-

priate procedure for selecting Mr. Ailts’ successor. After

Mr. Ailts tendered his formal resignation on December

7, 1993, the judges prepared a vacancy announcement to

advertise the position in News and Views, a publication

of the Probation Division of the Administrative Office of

the United States Courts which is circulated to every

federal probation office in the country.

The judges also established a panel to review all ap-

plications for the position, choose three to seven of the

best-qualified of those applicants, and submit those

names to the judges for interviews and a final decision.

' Section 3602 provides in pertinent part as follows:

(a) Appointment. — A district court of the United

States shall appoint qualified persons to serve, with

or without compensation, as probation officers within

the jurisdiction and under the direction of the court

making the appointment. . . .

(c) Chief probation officer. — If the court ap-

points more than one probation officer, one may be

designated by the court as chief probation officer and

shall direct the work of all probation officers serving

in the judicial district.

App. 33

The members of this screening panel were Mr. Ailts,

Judge Longstaff, United States Attorney for the South-

ern District of lowa Don Nickerson, and Federal Public

Defender for the Southern District of lowa Paul Zoss.

The screening panel received and reviewed 16 applica-

tions for the position. Panel members conducted further

investigation into the merits of certain applicants, speak-

ing with colleagues who were familiar with the appli-

cants and their qualifications for the job. The panel

members also decided that as a matter of courtesy the

names of any applicants from the United States Proba-

tion Office for the Southern District of Iowa should be

forwarded to the judges for interviews.

After conducting its review, the screening panel for-

warded to the judges for further consideration the names

of three individuals. Those persons were David Duffy,

John Stites, and L. Jane McPhillips. Mr. Duffy and Mr.

Stites were supervisors in the probation office for the

Southern District of lowa, and Ms. McPhillips was a

supervising probation officer in the District of Minnesota.

The panel did not rank the finalists, or recommend one

over another. The screening panel also provided copies of

all applications to Judges Wolle and Vietor for their own

evaluation, as they were not members of the panel.

On March 10, 1994, the judges interviewed Mr. Duffy,

Mr. Stites and Ms. McPhillips. After independently re-

viewing the application materials and recommendations

for each of the three, the judges met late that same

afternoon to make their decision. Each judge voted to

hire Ms. McPhillips. On March 14, 1994, the judges ap-

pointed Ms. McPhillips as the Chief United States Pro-

bation Officer for the Southern District of Iowa, com-

mencing on May 2, 1994.

a ii

App. 34

On March 8, 1996, Mr. Duffy filed this lawsuit against

the judges in their individual and official capacities,

claiming that their appointment of an allegedly less-

qualified female candidate to the position violated his

Fifth Amendment right to equal protection. He seeks

declaratory and injunctive relief, as well as damages to

compensate him for the alleged violation.

The defendants have moved to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction and 12(b)(6) for failure to

state a claim upon which relief can be granted. The

defendants also submitted affidavit evidence in support

of their motion, requesting that in accordance with Fed.

R. Civ. P. 12(b) the motion to dismiss be treated as a

motion for summary judgment pursuant to Rule 56. The

plaintiff, however, asks that consideration of the sum-

mary judgment aspect of the motion be delayed to allow

him to conduct discovery. Because this matter can be

resolved on the present record, Plaintiff's request is

denied, and his opposition to the defendants’ motion is

overruled.

II. DISCUSSION

A. Alternate remedies

As a preliminary matter, the defendants argue that

Plaintiff's action is precluded because he failed to pursue

alternative “equally effective” remedies. Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388, 397

(1971).? In Bivens, the United States Supreme Court

* Plaintiff clearly and correctly states this is not a Title VII

action. Title VII provisions plainly exclude employees of the

(continued...)

App. 35

held that damages are available to individuals whose

constitutional rights have been violated by federal offi-

cials. Two exceptions to this are (1) where Congress has

provided an alternative remedy, 403 U.S. at 397, or (2)

where there are “special factors counselling hesitation in

the absence of affirmative action by Congress.” 403 U.S.

at 396.

The Supreme Court subsequently expounded on the

concepts of “alternative remedies” and “special factors”

in Bush v. Lucas 462 U.S. 367 (1983), holding that when

there exists “an elaborate remedial system [e.g. the Civil

Service Reform Act] that has been constructed step by

step, with careful attention to conflicting policy consider-

ations, .. . a new judicial remedy for the constitutional

violation at issue” should not be created. 462 U.S. at 388.

A “special factor” which is sufficient to preclude a Bivens

action includes the existence of a statutorily-created

remedy, even if the remedy does not provide complete

relief. Bush, 462 U.S. at 388; Schweiker v. Chilicky, 487

U.S. 412, 423 (1988).

The Eighth Circuit Court of Appeals describes it thus:

The result is a sort of presumption against

judicial recognition of direct actions for violations

2 (...continued)

federal judicial branch whose positions are not in the competi-

tive service. 42 U.S.C. Section 2000e-16(a).

Plaintiff, as a federal probation officer, is a judicial branch

employee, but his position is considered “excepted service”

rather than competitive service.

Moreover, this action is not precluded by the Federal Tort

Claims Act as the exclusiveness of that remedy does not apply

to constitutional violations committee by government officers

or employees. 28 U.S.C. Section 2679(b)(2).

ee

App. 36

of the Constitution by federal officials or employ-

ees. If Congress has not explicitly created such a

right of action, and if it has created other reme-

dies to vindicate (though less completely) the

particular rights being asserted in a given case,

the chances are that the courts will leave the

parties to the remedies Congress has expressly

created for them. Only if Congress’s omission to

recognize a constitutional tort claim was “inad-

vertent” will the courts be free to allow such a

claim. ... To some it may seem odd that congres-

sional silence can, in effect, limit the right to be

fully compensated for constitutional wrongs, but

that is the message of Chilicky, and we are ob-

liged to heed it.

Mclntosh v. Turner 861 F.2d 524, 526 (8th Cir. 1988).

See also Maxey v. Kadrovach, 890 F.2d 73, 75 (8th Cir.

1989), cert. denied, 495 U.S. 933 (1990).

In the present case, the defendants maintain that

Plaintiff should have sought relief under the alternative

remedies of the federal back pay statute, 5 U.S.C.

Section 5596, or the Southern District of lowa’s Judiciary

Equal Employment Opportunity Program before filing |

this lawsuit.

The Back Pay Act provides for back pay, interest, and

attorney fees for employees who, on the basis of a timely

appeal or administrative determination, are found to

have been affected by “unjustified or unwarranted per-

sonnel action[{s]” which resulted in the withdrawal or re-

duction of all or part of the employee’s pay, allowances,

or differentials.

The defendants’ reliance on this statute as one under

which Plaintiff could have pursued a remedy is mis-

placed, however. The Back Pay Act has been interpreted

ie ia racine a a a aroar ee ern

vsssiaeaieiitaiate acca eau.

App. 37

as applying to failure-to-promote claims only where the

improperly-denied promotion was noncompetitive and

mandatory, rather than discretionary. Woolf v. Bowles,

57 F.3d 407, 411 (4th Cir. 1995) (citing Brown v. Secre-

tary of the Army, 918 F.2d 214 (D.C. Cir. 1990), cert.

denied, 502 U.S. 810 (1991), and Edwards v. Lujan, 40

F.3d 1152 (10th Cir. 1994), cert. denied, ___ ~ U.S. __,

116 S.Ct. 417 (1995)). As the Court of Appeals for the

Federal Circuit said, the Back Pay Act is “not designed

to provide payment for all actions which should or might

well have been taken, but only for those payments or

benefits which were required by law.” (emphasis in orig-

inal). Clearly, the search for a chief probation officer was

competitive and the ultimate choice was in the discretion

of the judges. The Back Pay Act therefore does not apply.

The defendants next argue that Mr. Duffy should have

sought relief through the equal employment opportunity

plan implemented in the district in 1987.° The Judicial

Conference of the United States directed each court to

adopt a plan in conformance with the national policy of

providing equal employment opportunities to all persons

regardless of race, sex, color, national origin, religion,

age, or disability. The program applies to all court per-

sonnel. An applicant or court employee who believes he

or she has been discriminated against in any facet of

personnel management, including recruitment, hiring,

promotion, or advancement, has the right to initiate a

complaint with the district’s EEO coordinator. The co-

* The following summary of the details of the district’s equal

employment plan is taken from Exhibit J to the Affidavit of

Charles Wolle, attached to the defendant’s Statement of Ma-

terial Facts (filing 6).

App. 38

ordinator is then responsible for investigating the matter

as necessary, consulting with the parties, and preparing

a report of his or her findings and recommendations.

If any of the parties objects to the coordinator’s find-

ings and recommendations, the party has the right to file

a request for review with the chief judge or the chief

judge’s designee. The chief judge then may conduct such

investigation as he or she deems appropriate, and hold

a formal hearing if warranted. The chief judge then

issues a final decision on the merits of the complaint.

Mr. Duffy and several of his colleagues submitted affi-

davits in this matter stating they were unaware of the

EEO plan. See Affidavits of David A. Duffy, Karen

Carter, Michelle C. DiBlasi, Leanne L. Moore, and John

J. Spicer, attached to Plaintiff's Mem. in Opp. to the

Mot. to Dismiss (filing 15). Their argument is unavailing.

The plan is part of the public record, and all court |

employees are deemed to have notice of it.

More efficacious for the plaintiff, however, is the

Eighth Circuit Court of Appeals’ recognition that some

administrative remedies may be “hollow” when an em-

ployee is required to appeal to the supervisor of those

who committed the wrong about which he is complaining.

Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991). In the

Krueger case, the plaintiff discovered and reported

“irregularities” in the operation of certain United States

Department of Agriculture programs in the Missouri

county where he was executive director of the Depart-

ment’s Agriculture Stabilization and Conservation Ser-

vice (“ASCS”). His superiors at the state level discour-

aged him from pursuing the matter, and fired him after

he bypassed the state ASCS committee to take his

App. 39

concerns to the Office of the Inspector General (“OIG”).

The OIG performed an audit which supported Krueger's

allegations. Krueger appealed his termination through

ASCS channels, but filed a Bivens action when the

agency upheld his firing.

The Eighth Circuit discussed the application of the

Chilicky standard to the Bivens actions, and analyzed

the “inadvertence exception” in the context of federal

employees such as Krueger who have no Congressionally

designed remedial provisions available to them. The

Court allowed Krueger to proceed with his Bivens suit

because the “meager” administrative remedy otherwise

available to him could not have been “the product of

conscious Congressional design”. Krueger at 1056, 1057.

Plaintiff here focuses on the “hollow and meager rem-

edy” aspect of Krueger, and argues that requiring Mr.

Duffy to have first pursued an EEO challenge within the

Southern District of lowa before filing this lawsuit would

have been an exercise in futility, as he would have been

appealing ultimately to one of the same people (or a

designee thereof) who voted against him for the CUSPO

position. Under the circumstances, this is a valid argu-

ment. Therefore, Mr. Duffy’s case will not be dismissed

for having failed to pursue administrative action before

pursuing legal action.

B. Summary judgment standard

Summary judgment should be granted only “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

App. 40

as a matter of law”. Fed. R. Civ. P. 56(c). Summary judg-

ment is an extreme and treacherous device, which should

not be granted unless the moving party has established

a right to a judgment with such clarity as to leave no

room for controversy, and unless the other party is not

entitled to recover under any discernible circumstances.

Vette Co. v. Aetna Casualty & Sur. Co., 612 F.2d 1076,

1977 (8th Cir. 1980). In passing upon a motion for sum-

mary judgment, the district court must view the facts in

the light most favorable to the party opposing the mo-

tion. Id. Even if the district court is convinced that the

moving party is entitled to judgment, the exercise of

sound judicial discretion may dictate that the motion

should be denied, in order that the case can be fully

developed at trial. McLain v. Meier, 612 F.2d 349, 356

(8th Cir. 1979).

Essentially the test is “whether the evidence presents

a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-252 (1986). And, although under Federal

Rule of Civil Procedure 56 due deference must be given

to the rights of litigants to have their claims adjudicated

by the appropriate finder of fact, equal deference must be

given under Rule 56 to the rights of those defending

against such claims to have a just, speedy and inexpen-

sive determination of the action where the claims have

no factual basis. Celptex Corp. v. Catrett, 477 U.S. 317,

327 (1986).

C. Immunity

In the present case, the parties disagree about whether

the judges are protected by absolute or qualified immuni-

%

%

A

App. 41

ty. The judges, of course, suggest that absolute judicial

immunity protects them. Judges have long been entitled

to absolute immunity from damage for their official judi-

cial acts. Such immunity protects the finality of judg-

ments, discourages inappropriate collateral attacks, and

protects judicial independence by forfending frivolous

and vexatious actions prosecuted by disgruntled liti-

gants. Forrester v. White, 484 U.S. 219, 225 (1988).

This immunity is functional, attaching to the act ra-

ther than the actor and protecting truly judicial acts

rather than acts that simply are performed by a judge.

Thus, acts of a judicial character, performed within a

judge’s lawful jurisdiction, are covered, while acts of an

administrative, legislative, or executive nature usually

are not. Id. at 227.

The case law is clear that employment decisions made

by judges are made in their administrative capacities

and not in their judicial capacities. In Forrester, a state

court judge who had statutory authority to appoint and

dismiss probation officers was sued by a female officer

whom he hired, promoted, demoted and discharged. The

probation officer sued the judge for sexual discrimina-

tion. The judge claimed absolute immunity.

The United States Supreme Court found that, while

the judge’s duties of hiring and firing court employees

were necessary to the court’s operation, they were ad-

ministrative acts as opposed to judicial acts. Judges, the

Court held, are not distinguishable from other public

officials who make personnel decisions without the pro-

tective cloak of absolute immunity. “To conclude that,

because a judge acts within the scope of his authority,

.. .employment decisions are brought within the court’s

App. 42

‘jurisdiction,’ or converted into ‘judicial acts,’ would lift

form above substance.” Forrester, 484 U.S. at 230. See

also Bryant v. O’Connor, 848 F.2d 1064, 1067 (19th Cir.

1988).

Clearly, then, the defendants are not entitled to abso-

lute immunity when appointing a new CUSPO. Absent

case law to the contrary, not even the defendants’ argu-

ment regarding the Court’s reliance on the probation

office’s “active role” in Sentencing Guideline interpreta-

tion is sufficient to finesse this situation in to one which

absolute immunity would apply.

On the other hand, however, government officials who

are sued for damages for their performance of discretion-

ary functions may raise the defense of qualified immuni-

ty. In Harlow v. Fitzgerald, 457 U.S. 800, 815-818 (1982),

the Supreme Court articulated the current doctrine of

qualified immunity as follows: “[Glovernment officials

performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known”. Id. at 818.

The most appropriate way to resolve motions involving

the qualified immunity defense is to engage in a sequen-

tial analysis. This analysis may involve four inquiries.

First, one asks: from what the plaintiff claims, is the

challenged conduct a violation of a constitutional or

federal law as currently interpreted? Assuming a mini-

mal level of specificity in the complaint, this analysis will

focus only on the allegations of the complaint. If the

conduct as alleged is not a violation of current law, then

the defendant wins on the issue of qualified immunity.

App. 43

If the conduct, as alleged, is a violation of federal law,

then a second inquiry is required.

The second inquiry asks: if the challenged conduct is a

violation of a constitutional or federal law as currently

interpreted, was the law “clearly established” at the time

of the challenged conduct? If the law was not “clearly

established,” then the defendant wins. If the law was

“clearly established,” then a third or fourth inquiry may

be required.

At this juncture it is appropriate to pause. It is impor-

tant to recognize that the first two inquiries focus on the

complaint and assume the facts as alleged in the com-

plaint are true. Jf, but only if, the defendant factually

disputes (normally by way of affidavit in support of a

motion for summary judgment) what the plaintiff alleges

in the complaint is it proper to inquire into the facts. If

the defendant challenges the factual accuracy of the

complaint, then at least one, and perhaps two, additional

inquiries may be necessary.

The third inquiry asks: Are the material facts undis-

puted, and, if so, do the material undisputed facts prove

that: (1) defendant’s conduct* did not violate established

‘ It is at this point that the defense of qualified immunity

begins to look like a ruling on the merits. Where, for example,

a defendant puts at issue in support of a motion for summary

judgment based on qualified immunity what he or she actually

did, the court must be careful not to unfairly limit the de-

fendant as to discovery. This is true even though one of the

essential purposes of the qualified immunity doctrine is to pro-

tect defendants from defending lawsuits in the pretrial stages.

Harlow, 457 U.S. at 815-17. When discovery is allowed, how-

ever, its scope should be narrowly tailored to the question of

qualified immunity. See Anderson v. Creighton, 483 U.S. 635,

(continued...)

App. 44

law, or, (2) a reasonable person in the defendant’s posi-

tion would not have been aware that such conduct vio-

lated established law? Thus, the defendant wins on the

defense of qualified immunity at this stage if (1) the

facts are undisputed, and, (2) either: (a) the defendant’s

conduct did not violate established law, or, (b) a reason-

able person in the defendant’s position would not have

been aware that such conduct violated established law.

The fourth inquiry asks: Assuming there are material

facts in dispute, do the disputed material facts, if proved

at trial by the plaintiff, nevertheless establish that (1)

the defendant’s conduct did not violate established law,

or, (2) a reasonable person in the defendant’s position

would not have been aware that such conduct violated

established law? Thus, a defendant wins the defense of

qualified immunity if the material facts are disputed

only by assuming that even if the plaintiff proves the

disputed material facts at trial, either (1) the defendant’s

conduct did not violate established law, or, (2) a reason-

able person in the defendant’s position would not have

been aware that such conduct violated established law.

* (...continued)

646 n.6 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

This having been said, a plaintiff will not be permitted to

complain about the lack of general discovery as an excuse to

defeat a motion for summary judgment based upon qualified

immunity grounds. Rather, a plaintiff must, in order to avoid

the conclusion that material facts are undisputed, point out

specifically how a discovery limitation order precludes him or

her from properly controverting the facts asserted by defen-

dant regarding the defense of qualified immunity. See Fed.R.

Civ. P. 56(f). If the limitation on discovery really does prohibit

a plaintiff from controverting a material fact pertinent to the

issue of qualified immunity, then one should assume the ma-

terial fact is disputed and proceed to the fourth inquiry in the

sequential analysis suggested in the text.

App. 45

The first two inquires may be answered in the affirma-

tive in the present case. Plaintiff alleges in his complaint

that the CUSPO position was given to a “substantial-

ly less qualified” applicant because of that applicant’s

gender. Plaintiff claims this conduct violated his Fifth

Amendment right to equal protection. At the time of the

alleged discrimination in 1994, the law was clearly es-

tablished. In Davis v. Passman, 442 U.S. 228 (1979), the

United States Supreme Court held that the equal pro-

tection component of the Fifth Amendment's due process

clause confers a federal constitutional right to be free

from gender discrimination which does not meet the

requirements of (1) serving important governmental ob-

jectives and (2) being substantially related to the

achievement of those objectives. Therefore, Plaintiff has

overcome the first two hurdles in the analysis.

From a review of the affidavits and statements of

material facts which both sides have submitted for con-

sideration on the present motion, it is clear the parties

believe that factual disputes exist. At this point in the

analysis, another reference to Bryant v. O’Connor, 848

F.2d 1064 (10th Cir. 1988), may be appropriate. While

Bryant is a case from the Tenth Circuit and therefore is

not binding authority here, this Court nonetheless finds

its reasoning to be convincing, as well as particularly

appropriate in this case.

Bryant was a federal probation officer who was dis-

charged for poor performance. He sued the district’s chief

judge and CUSPO under the First and Fifth Amend-

ments and 42 U.S.C. Section 1981, alleging that his

firing was racially motivated. Summary judgment was

granted for the defendants at the district court level on

the basis of judicial immunity. The subsequent Forrester

ee a ene

App. 46

decision on that issue was in Bryant’s favor, but the

Tenth Circuit found that sufficient grounds remained to

affirm the summary judgment nonetheless.

In support of their motion for summary judgment, the

Bryant defendants offered evidence of Bryant’s mendac-

ity and his flawed work, including serious inaccuracies

and omissions in his presentence reports. The Tenth

Circuit found this sufficient to support the defendants’

claim that Bryant was terminated for legitimate, non-

discriminatory reasons. Bryant countered with what the

court characterized as “his own bare assertion” that de-

fendant O’Connor has a reputation for racial prejudice.

This, the court said, was inadequate to defeat the motion

for summary judgment.

As in the present case, Bryant argued that an opportu-

nity to complete discovery would allow him to respond

more fully to the summary judgment motion. The court,

however, discounted this argument, pointing out that (1)

“insubstantial suits against high public officials should

not be allowed to proceed to trial,” Bryant at 1068

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 819-20 n. 35

(1982), and (2) mere hope that further evidence may

develop prior to trial is an insufficient basis upon which

to justify the denial of the motion,” Bryant at 1067

(quoting Contemporary Mission, Inc. v. U.S. Postal Serv.,

648 F.2d 97, 107 (2nd Cir. 1981), and Neely v. St. Paul

Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir.

1978)).

In the case currently before the Court, the defendants

offer in support of their motion affidavits and supporting

documentation on their procedure and their reasons for

choosing Ms. McPhillips for the position. They explain

their steps in publicizing the vacancy and reviewing,

App. 47

investigating and interviewing applicants for the job. The

evidence includes two letters commending Ms. McPhillips

and speaking highly of her abilities (Baskfield letter of

December 28, 1993, and MacLaughlin letter of June 11,

1992, both attached to Ex. H to the Wolle Affid. (filing

6)), as well as explanations by the judges of their inde-

pendent determinations that Ms. McPhillips was the

most qualified candidate. See, e.g., Wolle Affid. par. 8,

Vietor Affid. pars. 4 and 5, and Longstaff Affid. par. 5

(attached to Def.’s Statement of Material Facts (filing 6)).

In opposition, Mr. Duffy presents his own affidavit

with his personal observations that he was best-qualified

for the job. In addition, he provides his own analysis of

the percentage of female law clerks hired by Judges

Wolle and Longstaff as evidence that they are biased

against men. All of this so-called evidence is speculative

at best.°

Moreover, 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. Even the affidavit of

Mr. Ailts, which Plaintiff submitted, indicates only that

(1) Mr. Ailts personal recommendation for his successor

was Mr. Duffy, and (2) he had heard Judge Wolle com-

ment in passing that some unnamed entity in Washing-

* For instance, the judges’ law clerk hiring practices are ir-

relevant, and Plaintiff's statements in pars. 22-26 of his affi-

davit (attached to Pl.’s Mem. in Opp. to Defs.’ Mot. to Dismiss

(filing 15)) regarding the defendants’ compliments to him and

their lack of comment on his merits relative to those of Ms.

McPhillips do not exactly provide strong support for his argu-

ment.

BP ee ee

App. 48

ton, D.C., expressed interest in having a woman appoint-

ed to what Mr. Ailts assumed was the CUSPO position.°

Affidavit of Edwin Ailts (attached to Pl.’s Mem. in Opp.

to Defs.’ Mot. to Dismiss (filing 15)).

Consequently, then, 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.’

IT IS ORDERED Defendants’ motion to dismiss (filing

5), reviewed as a motion for summary judgment, is here-

by granted. Separate judgment will be entered.

DATED this 1st day of August, 1996.

BY THE COURT:

/s/ William G. Cambridge

WILLIAM G. CAMBRIDGE, Chief Judge

United States District Court

for the District of Nebraska

° This statement shows only that the defendants were en-

couraged to conduct a sufficiently comprehensive search that

women and minority candidates were represented in the ap-

plicant pool.

" The finding that Plaintiff is unable to show any genuine

issue of material fact which would entitle him to proceed with

this case negates the need for me to address whether declara-

tory and/or injunctive relief could be entered against these

defendants.

App. 49

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 96-3210SIDM

DAVID A. DUFFY,

Order Denying Petition for

Rehearing and Suggestion

)

)

Appellant, )

)

) for Rehearing En Banc

)

)

)

)

CHARLES R. WOLLE, et al,

Appellees.

The suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

October 29, 1997

Order entered at the Direction of the Court:

/s/ Michael E. Gars

Clerk, U.S. Court of Appeals, Eighth Circuit

App. 50

[Filed June 20, 1996]

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DES MOINES DIVISION

DAVID A. DUFFY,

Plaintiff,

Case No. 4-96-CV-10184

)

)

)

)

)

)

CHARLES R. WOLLE, )

HAROLD D. VIETOR and _ i+?)

RONALD E. LONGSTAFF, )

)

)

Defendants.

FI T OF DAVID A. DUFFY

STATE OF ILLINOIS

COUNTY OF SANGAMON—-ss:

DAVID A. DUFFY, being duly sworn upon his oath,

deposes and states as follows:

1. I am an adult resident of Des Moines, Iowa.

Presently, I am employed as a Deputy Chief in the

United States Probation Office for the Southern District

of lowa (“PROBATION OFFICE”). My judicial pay scale

grade is JSP-15. I have been employed continuously by

the PROBATION OFFICE since April of 1974.

2. Prior to becoming employed in the PROBATION

OFFICE I was a school psychologist. Before that I was in

the United States Army for two years where I served as

App. 51

a psychologist/sociologist specialist at the United States

Army Medical Research Laboratory at Fort Knox,

Kentucky.

3. I secured a baccalaureate degree in psychology

from Drake University in 1965. Thereafter, I was

awarded a masters degree in rehabilitation, psychological

counseling and corrections at Southern Illinois Univer-

sity in Carbondale, Illinois. During the year 1971 and

1972 I was enrolled in a doctoral program in educational

and school psychology at the University of Iowa.

4. In March of 1994 and for many years prior to that

time the PROBATION OFFICE provided services to the

United States District Court for the Southern District of

Iowa (“COURT”) with respect to individuals who were

convicted or charged with violations of the federal crim-

inal laws. The functions of the PROBATION OFFICE in

this respect were divided into three separate areas which

are commonly referred to as pretrial, presentence and

supervision.

5. The pretrial area provides services to the COURT

with respect to evaluating and offering recommendations

regarding whether an individual charged with a violation

of the federal criminal laws should be released on bond

and, if so, under what conditions. In that respect the

pretrial area conducts an investigation and prepares a

written recommendation to the COURT which addresses

two considerations. The first consideration is whether

the individual is a risk of flight. The second consider-

ation is whether the individual presents a danger to the

community.

6. The presentence area is involved with making rec-

ommendations concerning the sentence which should be

App. 52

imposed upon an individual convicted of a federal crime.

In this respect the PROBATION OFFICE conducts an

investigation and prepares a written report to the

COURT which covers the nature of the crime and the

relevant history of the defendant in terms of his prior

criminal record, employment, health, financial condition

and family history. In November of 1987 the federal

sentencing guidelines were enacted into law by Congress.

I was trained in the guidelines and served as one of the

three office experts in the PROBATION OFFICE with

respect to the application of the sentencing guidelines. In

1993 and 1994 approximately 40% of the work of the

PROBATION OFFICE was in the presentence area.

7. The supervision area is responsible for overseeing

and monitoring individuals convicted of federal crimes

following the imposition of a sentence with respect to

individuals sentenced to probation and following incar-

ceration of an individual who serves a prison term. This

area assesses both the needs of individuals entrusted to

it as well as their compliance with the terms of their

supervision. In that connection it refers individuals

entrusted to it to particular agencies or programs if a

particular need is identified such as alcohol or drug

abuse and works with such agencies to insure that the

program goals are met.

8. During the period of my employment in the PRO-

BATION OFFICE I have held both line, supervisory and

administrative positions in each of the foregoing three

areas. With respect to the pretrial area I served as a

pretrial service officer for approximately three years.

Between 1992 and 1994 I supervised the pretrial area of

the PROBATION OFFICE with respect to the supervi-

sion of individuals who had been released on bond

App. 53

pending trial. Additionally, in the absence of the Chief

Probation Officer between 1989 and 1994 I supervised

the preparation of bond reports which were submitted to

the Magistrate Judge.

9. Inthe presentencing area I served as a presentence

writer from 1974 until 1990. Between 1990 and 1994 in

the absence of the Chief Probation Officer I was respon-

sible for supervising the presentencing area for the

PROBATION OFFICE.

10. With respect to the supervision area between 1974

and 1990 I had line responsibilities as a supervision

officer. Between 1990 and 1994 I had the responsibility

of supervising the supervision unit. In that respect I on

average supervised five to six line officers.

11. Periodically during my employment with the PRO-

BATION OFFICE I received a written performance

appraisal prepared by the Chief Probation Officer. The

appraisal form evaluates performance in four or five

separate ratings. I was always given the highest rating

available.

12. Between 1977 and 1990 in addition to my line

responsibilities I was assigned various administrative

responsibilities. In this respect I was: 1) the Pretrial

Diversion Coordinator between 1977 and 1981; 2) the

Training Coordinator between 1981 and 1987; 3) the

Sentencing Guideline Expert from 1987 to 1992; and 4)

the Drug Treatment Contract Specialist between 1987

and 1990.

13. In 1987 as one of my administrative tasks I de-

veloped the drug treatment program for the PROBA-

TION OFFICE. In 1994 almost 70% of the prosecutions

in the Southern District of lowa were drug related. With

App. 54

respect to those individuals prosecuted who came into

the jurisdiction of the PROBATION OFFICE most be-

came involved with the drug treatment program.

14. As a Sentencing Guideline Expert I served as a

resource person for presentencing line officers. In that

respect I would advise and counsel them concerning the

application of the federal sentencing guidelines with

respect to the specific cases on which they were working.

15. In 1993 and 1994 I was familiar with the manner

in which the PROBATION OFFICE utilized the federal

sentencing guidelines, The Chief Probation Officer played

no greater role in the application and use of those guide-

lines in the work of the PROBATION OFFICE than did

Probation Officers assigned to the presentence unit and

the Sentencing Guidelines Expert. The decision concern-

ing who would be designated as a Sentencing Guidelines

Expert and who would be assigned duties as a Probation

Officer in the presentencing unit was made by the Chief

Probation Officer and not by the COURT.

16. In 1990 I was promoted to a supervisory salary

grade position in the PROBATION OFFICE. At all times

following my promotion I have held supervisory positions

within the PROBATION OFFICE. However, I had super-

visory responsibilities within the PROBATION OFFICE

since 1989 even though my salary grade did not reflect

that I held a supervisory position. Between 1989 and

1990 I was the highest grade level employee in the PRO-

BATION OFFICE other than the Chief Probation Officer.

From time to time during that period he would delegate

to me supervisory tasks. Beginning in June of 1987 I

became an approving officer and was authorized in the

absence of the Chief Probation Officer to approve ex-

App. 55

pense vouchers of staff in the PROBATION OFFICE.

During the spring of 1989 and again in the fall or winter

of that year the Chief Probation Officer was away from

work approximately two weeks and one month respec-

tively because of a serious health problem with his wife.

During his absence that year I assumed the supervisory

responsibilities associated with operation of the PROBA-

TION OFFICE. In 1992 I was elevated to a JSP-14 level

supervisor. In a small probation office such as the South-

ern District of Iowa a person holding a position of that

level effectively serves as the deputy chief probation

officer. Appended to this instrument as Exhibit A is a

copy of a letter authored by the Chief Probation Officer

in 1992 to the Human Resource Division of the adminis-

trative offices of the United States Courts in support of

my elevation to JSP-14 position. Between approximately

1989 and 1994 when the Chief Probation Officer was

absent from the PROBATION OFFICE for leaves I ef-

fectively assumed his duties. I attended both Executive

meetings and indictment meetings with representatives

of the United States Attorney’s Office in the absence of

the Chief Probation Officer. I participated in decisions

concerning the hiring of probation officers and clerks. I

attended in lieu of the Chief Probation Officer from time

to time training seminars conducted for Chief Probation

Officers which included the Pretrial Service Monograph

Seminar and the Decentralized Budgeting Seminar. |

attended the Enhanced Supervisor Monograph Seminar

with the Chief Probation Officer and trained the presen-

tence unit on that area upon completing the seminar. In

order for me to attend the budgeting seminar which was

held in the spring of 1993 in California the Chief Proba-

tion Officer was required to secure permission from

Charles Wolle, the Chief Judge of the COURT.

App. 56

17. Since becoming employed in the PROBATION OF-

FICE I have undergone various types of management

training. In this respect between the years 1991 and

1994 I participated in the Leadership Development

Program sponsored by the Administrative Office of the

United States Courts. I successfully completed a princi-

ples and management course at Upper Iowa University

in 1990. I have taken several supervision courses spon-

sored by the Federal Judicial Center. Between 1992 and

1994 I attended at my own expense three management

workshops sponsored by Career Track as well as a man-

agement seminar sponsored by the National Seminar

Group. In my application to become Chief Probation

Officer I alluded to the forgoing experiences.

18. When I joined the PROBATION OFFICE in 1974

the Chief Probation Officer was Edwin G. Ailts. He con-

tinued to serve in that capacity until the spring of 1994

when he retired.

19. At some time during the first half of 1993 Mr. Ailts

announced at a staff meeting his intention to retire from

the PROBATION OFFICE in the spring of 1994. In

either December of 1993 or January of 1994 I became

aware through reading a current issue of “News and

Views”, the newsletter of the United States PROBATION

OFFICE, that the Chief Probation Officer position was

going to be filled. Appended to this instrument as Ex-

hibit B is the vacancy announcement which appeared in

that publication. When I became aware that applications

were being received for that position I submitted my

application for the Chief Probation Officer position. Ap-

pended to this instrument as Exhibit C is a copy of that

application.

App. 57

20. 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 be-

coming vacant. Thereafter, Mr. Ailts was selected by the

COURT to serve on the selection committee appointed to

assist in filling the Chief Probation Officer vacancy.

21. At about the time I submitted my application Mr.

Ailts informed me that the selection committee would be

composed of the United States Attorney, the Public De-

fender, Judge Ronald Longstaff and himself. In late Feb-

ruary of 1994 Mr. Ailts informed me that in reviewing

the applications for the Chief Probation Officer vacancy

it appeared that the field of candidates was not particu-

larly strong applicants.

22. On March 10, 1994 I was interviewed for the Chief

Probation Officer position. The interview was conducted

by Judges Wolle, Vietor and Longstaff and occurred in

Judge Vietor’s chambers. My interview lasted approxi-

mately 25 minutes. I became aware of the interview

several days earlier upon my return from annual leave.

During the interview I was asked a series of questions

which was rotated among the three judges. During the

interview Judge Vietor asked me what I would do if I did

not get the position of Chief Probation Officer? I respond-

ed to that question by indicating that I enjoyed my work

as well as the Des Moines community and if I did not

receive the promotion I intended to continue with my

App. 58

work in the PROBATION OFFICE. At the conclusion of

my interview prior to leaving Judge Vietor’s chambers he

came over to me, shook my hand and complimented me

on my interview. I have known Judge Vietor since his

appointment to the federal bench in the late 1970’s and

I had never known him to extend praise when it was not

deserved.

23. The following day John Stites and I were inter-

viewing probation officer candidates in the courthouse.

Mr. Stites was also interviewed the preceeding day for

the position. While we were conducting the interviews

Judge Wolle asked to speak with us. We spoke with him

for approximately one minute. He indicated that “a

woman supervisor from Minnesota” had been selected as

Chief Probation Officer. He stated that we had both

given good interviews and he understood our disappoint-

ment in not being awarded the position. He indicated

that he was in the process of leaving the city and if we

wished to discuss the selection further we should speak

with Judge Longstaff.

24. I met with Judge Longstaff shortly after my con-

versation with Judge Wolle. The meeting occurred in

Judge Longstaff’s chambers and lasted approximately 50

minutes. During the conversation Judge Longstaff in-

dicated that I had given a good interview and had not

answered any question incorrectly. He further indicated

that it had been a very difficult decision and the Judges

just finally had to make a choice. Much of the conversa-

tion was devoted to me expressing to Judge Longstaff my

concerns about not being selected for the position. He

offered to me no explanation as to how Jane McPhillips

was more qualified than I for the position or what lead

App. 59

them to the conclusion that she be appointed to the

position.

25. At no time during my interview was I asked any

questions which related to the federal sentencing guide-

lines. During my meeting with Judge Longstaff he did

not refer to either Ms. McPhillips background with the

sentencing guidelines on her law degree as being factors

which favored her appointment to the Chief Probation

Officer position.

26. Several weeks after my meeting with Judge Long-

staff I attended a probation revocation hearing before

Judge Wolle. During a recess in the hearing he requested

that I meet with him in his chambers. The meeting

lasted 5 to 10 minutes in length. During the meeting he

indicated he understood I was disappointed in not being

selected as Chief Probation Officer. He said that he un-

derstood my disappointment. I indicated to him that it

was my considered view that I was the best candidate for

the position. He took no issue with that statement and

offered no explanation as to why Ms. McPhillips had

been selected for the position. He encouraged me to

pursue what he called my “cutting edge ideas” for the

operation, management and development of the PROBA-

TION OFFICE which I had presented in my interview.

He further indicated that if the new Chief Probation

Officer interfered with my efforts in pursuing those ideas

he wanted to be informed of such.

27. During my service as a probation officer I have

become acquainted and aware of individuals who work in

various positions in the COURT. In this respect I am

aware of the individuals who have served as law clerks

for each of the Judges of the COURT. Since he became

App. 60

a District Judge in 1987 Judge Wolle has employed eight

individuals to serve him as law clerks. Only two of those

individuals were males. Since he became a District Judge

in 1991 Judge Longstaff has employed nine different in-

dividuals to serve as his law clerks. Only one of those

individuals was a male.

28. I have been employed by the COURT since 1974.

At no time during my employment was I ever provided

a copy of the Equal Employment Opportunity policies of

the COURT or informed of any grievance rights I pos-

sessed in the event I felt I was the victim of discrimina-

tion or been made aware of the existence of any griev-

ance rights prior to the initiation of the above lawsuit.

As a matter of course during my employment benefit

information relevant to my employment has been provid-

ed to me by the personnel officer of the PROBATION

OFFICE. I did not become aware of any Equal Employ-

ment Opportunity guideline or grievance right until I

reviewed the affidavits of the Defendants filed in the

above captioned proceeding. At no time during my con-

versations with any of the Judges subsequent to my non-

selection for the Chief Probation Officer position did any

of them inform me of the existence of an equal employ-

ment policy or a grievance mechanism.

29. In April of 1994 I attended a retirement party held

in honor of Edwin Ailts. During that party I read a

number of letters that had been solicited for the occa-

sion. The substance of which was to wish Mr. Ailts well

in his retirement. One of the letters was from Judge

Longstaff. In that letter Judge Longstaff referred to the

PROBATION OFFICE as being the best probation office

in the country.

App. 61

30. This affidavit is based upon my personal knowledge

and, if called upon, I could competently testify to the

matters set forth above.

FURTHER YOUR AFFIANT SAYETH NOT.

/s/ David L. Duffy

DAVID L. DUFFY

Subscribed to and sworn before

me this 13th day of June, 1996.

/s/ Betty J. Miller

NOTARY PUBLIC

App. 62

EXHIBIT A

July 8, 1992

REPLY TO DES MOINES

Ms. Ann Alston

Human Resource Division

Administrative Office of

the U.S. Courts

Washington, D.C. 20544

Re: DUFFY, David A.

SSN: 480 50 3307

Position No.: P8613179

RECLASSIFICATION OF A

SUPERVISOR POSITION TO JSP-14

Dear Ms. Alston:

The Southern District of Iowa is classified as a small

district. The Supervision United States Probation Officer,

David Duffy, presently a JSP-13, acts as a chief deputy

would act in the larger districts in that he has office

wide responsibilities.

You will note from our office organization chart that

we are not below the 1:6 ratio.

The Supervising U.S. Probation Officer supervises the

following staff:

Number Title Target Grade

Positions

2 Senior U.S. Probation Officer 13

6 Probation Officers 12

8 Total Subordinates

App. 63

I am recommending that Supervising U.S. Probation

Officer David Duffy position be reclassified to Grade 14.

Very truly yours,

/s/ Edwin G. Ailts

Edwin G. Ailts, Chief

U. S. Probation Officer

[Exhibit B omitted in printing; see App. 89-92

for vacancy announcement. ]

Ma aN aaa a ik i ie ie,

App. 64

EXHIBIT C

DAVID A. DUFFY

Supervising U.S. Probation Officer

Southern District of Iowa

| POSITION APPLIED FOR: Chief United States

| Probation Officer,

Southern District ef lowa

MANAGEMENT CAPABILITIES:

Administrative

Function as chief during CUSPO’s absences

Initiate & coordinate intra and interagency planning

and work

Conduct reviews of policies, procedures and programs

Integrate and coordinate activities of PO’s

Assign and oversee daily work of PO’s

Leadership

Assist CUSPO in selecting staff

Use significant educational preparation in psycholo-

gy, educational psychology, school psychology, and

counseling to assure practical application of motiva-

tion, learning and personality concepts of manage-

ment approaches

Coordinate staff development and remediation of

identified deficiencies

Co-facilitate with CUSPO continuous Enhanced

Supervision training program

App. 65

Promote ongoing training and professional improve-

ment of PO’s

Cognitive and Innovative

Develop and implement action-oriented programs

and procedures

Integrate concept of least intrusive case supervision

and crisis intervention

Create and initiate new strategies of case work,

management and supervision

Analyze procedures and policies and develop ap-

proaches which are pragmatic, effective and cost-

efficient

Personal Adaptability

Willfully assume roles CUSPO delineates

Tolerate stress well - remain calm and focused in

crises and organizational change situations

Adapt readily to program changes which further or-

ganizational goals

Communication and interpersonal

Consistently demonstrate strong ability to use lis-

tening and patience in working with individuals with

diverse needs and varying educational and cultural

backgrounds

Present intra-agency seminars and workshops

MAJOR ACHIEVEMENTS:

Occupied progressively more responsible key leader-

ship positions in the District including: Pretrial Di-

App. 66

version Coordinator, Training Coordinator, WITSEC/

Special Offender Specialist, Guideline Expert, Drug

Aftercare Specialist, Supervisor (JSP 13), Supervisor

(JSP 14).

Performed regularly all duties of the CUSPO in his

absence, including assignment of presentence re-

ports, review of presentence and bond reports,

attendance at meetings (Courthouse Administrative,

Automation and Drug Task Force Indictment/Arrest),

and acting as Approving Official.

Oversaw preparation of sensitive presentence report

of former CUSPO of our district. Also, oversaw his

supervision and authored high profile presentence

reports for the district.

Assisted CUSPO in selection and background investi-

gation of new POs and in selection of new clerks.

Encouraged hiring of women and minorities for

Probation Officer positions. Recommended assign-

ment of additional duties to woman officer (mental

heaith specialist designate) who was not senior in

seniority but most qualified.

Participated in AO Budget Decentralized Workshop

(February-March 1993).

Attended by invitation Judicial Center’s Seminar on

Enhanced Supervision (December 1991). Presented

overview of supervision model to presentence and

supervision officer staff. Developed, wrote and imple-

mented policy for the Enhanced Supervision Model

with supervision staff.

Accelerated development of supervision competency

in line officers for the Enhanced Supervision Model

by implementing a “team” approach.

App. 67

Developed the following action-oriented procedures:

The least intrusive form of case supervision; immedi-

ate response to drug positive; appropriate and com-

prehensive crisis intervention; and exhaustion of all

supervision options (consistent with public safety)

prior to revocation request.

Attended (November 1993) Judicial Center’s Seminar

on Pretrial Service Supervision Monograph and am

involved in District’s implementation.

Aided (1992) the U.S. Attorney’s Office in formulat-

ing their current Pretrial Diversion Agreement.

Worked with Assistant United States Attorneys and

supervision probation officers in streamlining viola-

tion reports and hearings for Court. Promoted shar-

ing of information with defense counsel and encour-

aged stipulation and waiver of hearings as time-

saving procedures.

Developed district’s comprehensive drug treatment

program.

Reviewed drug specialist’s contract audits and drug

contract invoices, made program improvements, rec-

ommended and troubleshot drug contracting prob-

lems. Reviewed electronic monitoring specialist’s case

supervision documents and invoices.

Developed a “weighted” case assignment supervision

system to equalize workload among supervision of-

ficers.

Developed new forms and report formats for docu-

ments submitted to the Court or Parole Commission.

Formulated orientation program for new supervision

officers stressing a pragmatic “hands on” learning

approach.

bilinear

App. 68

Received Excellent Employee ratings since inception

to Federal Probation Service (1974) and received two

Quality Increase Awards for continued high quality

performance.

WORK HISTORY:

SUSPO (JSP 14) 1992 - present

Act as Chief in Chief’s absence and am responsi-

ble for quality control of drug aftercare and elec-

tronic monitoring specialist programs.

SUSPO (JSP 13) 1990 - 1992

Responsible for acting as Chief in Chief’s absence

and providing quality control for drug aftercare

program.

Drug Treatment Specialist 1987 - 1990

Guideline Expert 1987 - 1992

Training Coordinator 1981 - 1987

Pretrial Diversion Coordinator 1977 - 1981

Entered Probation Service as probation officer 1974

Other experience includes work as a school psycholo-

gist, psychological-social specialist (service-connected

duty at the Army Medical Research Lab) and three

month internship (Master’s program requirement) at

Marion Federal Penitentiary.

PROFESSIONAL IMPROVEMENT:

Federal Judicial Center Leadership Development

participant

Paper on Total Quality Management (submitted

and accepted)

App. 69

Paper demonstrating leadership's impact on

probation and pretrial services (submitted and

accepted)

Project creating “hands on” orientation program

for new officers involved in supervision in the

district (submitted and accepted)

Two week temporary duty assignment with

Robert DeMaulenaere and J.C. Brenton, Presi-

dent and Past President of Brenton Banks of

Iowa (to be completed no later than May of 1994)

Applied Supervisor’s correspondence course - Federal

Judicial Center (FJC) Sponsored

Seminar for new supervisors - FJC

Management Principles Course - three semester

hours at local university

Total Quality Management Workshop (Management

model touted by FJC) - Career Track

Self-Directed Work Teams Workshop - Career Track

One-Minute Manager Seminar - Emphasis: Matching

leadership style to developmental state of worker -

Career Track

Conflict and Anger Management Workshop - Nation-

al Seminar Group

Training Coordinator and Advanced Training Coordi-

nator Seminars - FJC

Reporting Writing Course - FJC

Sentencing Guideline Workshop - U.S. Sentencing

Commission

Drug Contracting Workshop - FJC

WITSEC and Special Offender Workshop - FJC

EDUCATION:

1971 - 1972

1965 - 1967

1965

App. 70

University of lowa

Participation in Ed/Psych Doctoral Pro-

gram

Emphasis: Motivation, Learning, Learn-

ing and Behavior Disorders

Southern Illinois University

Master of Science

Emphasis: Rehabilitation, Psychological

Counseling, and Corrections

Drake University

Bachelor of Arts

Major: Psychology

App. 71

[Filed June 20, 1996]

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DES MOINES DIVISION

DAVID A. DUFFY,

Plaintiff,

Case No. 4-96-CV-10184

)

)

)

)

)

)

CHARLES R. WOLLE, )

HAROLD D. VIETOR and

RONALD E. LONGSTAFF, )

)

)

Defendants.

AFFIDAVIT MADE PURSUANT TO

RULE 56(f) OF THE FEDERAL RULES

OF CIVIL PROCEDURE

STATE OF ILLINOIS

COUNTY OF SANGAMON-—ss:

JAMES P. BAKER, being duly sworn upon his oath,

deposes and states as follows:

1. I serve as the primary counsel for the Plaintiff,

DAVID DUFFY, in the above proceeding. In the above

case the Plaintiff maintains his case under the Equal

Protection clause of the Fifth Amendment of the United

States Constitution and contends he was denied the

equal protections of the law when he was passed over for

promotion as Chief Probation Officer for the United

States District Court for the Southern District of lowa.

App. 72

In this respect he contends that the Defendants’ decision

in selecting a successful applicant was based upon

gender related considerations.

2. In their initial response to the complaint the De-

fendants have requested dismissal of the Plaintiff's

claims under both Rule 12(b\(6) and Rule 56 of the

Federal Rules of Civil Procedure. With respect to the

summary judgment aspects of their claim the Defendants

apparently contend that the Plaintiff cannot demonstrate

a prima facie claim of gender discrimination. Each of the

Defendants has filed an affidavit in support of that

motion.

3. The affidavits of the Defendants do not appear to

address whether the Plaintiff can establish a prima facie

claim of gender discrimination. Rather, each speaks to

the reasons for the decision.

4. The Plaintiff has filed in response to the motion of

the Defendants affidavits which support his position that

he can establish a prima facie claim of gender discrimi-

nation in the instant case. Until he conducts discovery

and specifically has the opportunity to depose each of the

Defendants he is not in a position where he can reason-

ably make a presentation that the Plaintiff's explana-

tions for their actions are a pretext for unlawful dis-

crimination. It is unclear from the arguments addressed

in their brief whether the Defendants’ contentions in

their affidavits concerning the factual aspects of the

Plaintiff's claim of gender discrimination are limited to

his capability of stating a prima facie claim or whether

they expect him to attack the legitimacy of the Defen-

dants’ explanations for their actions. In the event it is

the latter the Plaintiff, DAVID DUFFY, requests reason-

App. 73

able opportunity to complete discovery before this Court

rules on the aspects of the Defendants’ motion for sum-

mary judgment which turns upon the reasons they state

motivated their selection decision.

FURTHER YOUR AFFIANT SAYETH NOT.

/s/ James P. Baker

JAMES P. BAKER

Subscribed to and sworn before

me this 17th day of June, 1996.

/s/ Kathleen Y. Hastings

NOTARY PUBLIC

[Certificate of Service omitted in printing.]

App. 74

[Filed June 20, 1996]

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

DES MOINES DIVISION

DAVID A. DUFFY,

Plaintiff,

Case No. 4-96-CV-10184

CHARLES R. WOLLE,

HAROLD D. VIETOR and

)

)

)

)

)

)

)

)

RONALD E. LONGSTAFF, _)

)

)

Defendants.

AFFIDAVIT OF EDWIN AILTS

STATE OF IOWA

COUNTY OF DALLAS—ss:

EDWIN AILTS, being duly sworn upon his oath, de-

poses and states as follows:

1. I am an adult resident of Adel, Iowa. Until the

spring of 1994 I had for many years been employed as

the Chief Probation Officer of the United States Proba-

tion Office (‘PROBATION OFFICE”) for the Southern

District of Iowa.

2. In the fall of 1993 I informed Judge Charles Wolle,

Judge Harold Vietor and Judge Ronald Longstaff of my

tentative intention to retire as the Chief Probation

Officer of the PROBATION OFFICE some time in the

App. 75

spring of 1994. At some point thereafter I tendered to

them a more formal announcement of my decision to

retire.

3. In my capacity as Chief Probation Officer I would

from time to time engage in social conversations with

each of the Judges. At some time following the time I

informed the Judges 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 appoint-

ment 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.

4. I served on the review committee which was

involved in selecting the Chief Probation Officer. The

primary function of the review committee was to narrow

from among the applications received for the position the

candidates who would be interviewed by the Judges of

the United State District Court for the Southern District

of Iowa. In selecting finalists for interviews I understood

that each individual who was a current employee of the

PROBATION OFFICE would be entitled to an interview.

The two individuals from the PROBATION OFFICE who

had applied for the position were David Duffy and John

Stites.

App. 76

5. At some time after candidates were selected for an

interview, but prior to the time an announcement was

made concerning the applicant who was awarded the

position I was asked by Judge Ronald Longstaff who I

would recommend to fill the position. I informed him

that my recommendation was that it be awarded to

David Duffy.

6. This affidavit is based upon mv personal knowledge

and, if called upon, I could test:‘y competently to the

matters set forth above.

FURTHER YOUR AFFIANT SAYETH NOT.

/s/ Edwin Ailts

EDWIN AILTS

Subscribed to and sworn before

me this 14th day of June, 1996.

/s/ Donna M. Hemphill

NOTARY PUBLIC

App. 77

[Filed May 7, 1996]

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

DAVID A. DUFFY,

Plaintiff, Civil No. 4-96-10184

CHARLES R. WOLLE,

HAROLD D. VIETOR and

RONALD E. LONGSTAFF,

AFFIDAVIT OF HAROLD D.

VIETOR, JUDGE OF THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF IOWA

**eeeHe Ee HE HE HOH OF

Defendants.

STATE OF IOWA

COUNTY OF POLK—ss:

HAROLD D. VIETOR, being first duly sworn, hereby

deposes and states as follows:

(1) I have served as Judge of the United States

District Court for the Southern District of Iowa since

1979. I served as Chief Judge from 1985-92.

(2) As a Judge of the United States District Court for

the Southern District of lowa, and pursuant to 18 U.S.C.

Section 3602, I participated in the selection and appoint-

ment of a Chief Probation Officer to succeed Edwin Ailts,

who retired effective May 1, 1994.

(3) Pursuant to the court’s interest in obtaining a

diverse pool of the best qualified applicants available, the

vacancy in the Chief Probation Officer position was an-

App. 78

nounced throughout the United States Probation Office

system through News and Views, a publication of the

Probation Division of the Administrative Office of the

United States Courts. Upon information and belief, 16

persons submitted applications. A screening panel com-

prised of Judge Ronald E. Longstaff, U.S. Attorney Don

Nickerson, U.S. Public Defender Paul Zoss, and Chief

Probation Officer Edwin Ailts was designated by Chief

Judge Wolle, Judge Longstaff and me to review the

applications and references and to submit a list of

application finalists to us for further consideration and

interviews. Three finalists were submitted: (1) David

Duffy; (2) John Stites; and (3) L. Jane McPhillips. These

three finalists were interviewed by Chief Judge Wolle,

Judge Longstaff and me on March 10, 1994, in my cham-

bers between 9:00 a.m. and 11:00 a.m.

(4) I reviewed the applications and materials submit-

ted by the three finalists. Because David Duffy and John

Stites had served as probation officers and supervisors in

the Southern District of Iowa for several years, I knew

them personally and was familiar with their work. I did

not know L. Jane McPhillips, who was a probation officer

in the District of Minnesota. I spoke personally with

Judge James Rosenbaum and Senior Judge Harry

McLaughlin of the United States District Court for the

District of Minnesota and Dan Scott, the U.S. Public

Defender for the District of Minnesota. All three spoke

very well of Ms. McPhillips’ abilities and unequivocally

and highly recommended her for the position of Chief

Probation Officer. I reported to Chief Judge Wolle and

Judge Longstaff on my conversations with Judge Rosen-

baum, Senior Judge MacLaughlin and Mr. Scott, and

they reported that Minnesota federal judges they con-

App. 79

tacted also highly recommended Ms. McPhillips. I believe

that one of us reported that the United States Attorney

or an Assistant United States Attorney in the District of

Minnesota also highly recommended Ms. McPhillips.

(5) At approximately 4:30 p.m. on March 10, 1994,

Chief Judge Wolle, Judge Longstaff and I met to deliber-

ate. I independently concluded that Ms. McPhillips was

the best qualified candidate for the position. I was im-

pressed with Ms. McPhillips’ experience, which included

significant supervisory responsibility in the District of

Minnesota. I was also impressed with Ms. McPhillips’

academic accomplishments which included going to law

school and obtaining a juris doctor degree while she was

serving as a probation officer in Minnesota. Ms. McPhil-

lips’ attributes also included extensive legal and practical

experience with the Federal Sentencing Guidelines. One

or more of the Minnesota judges I spoke with also com-

mented 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 or Mr. Stites.

Gender of the three was not mentioned in discussions

among Chief Judge Wolle, Judge Longstaff and myself.

I was well satisfied that Ms. McPhillips was the best

qualified person from the list of applicant finalists sub-

mitted by the screening panel. Only when we voted, did

I learn that Chief Judge Wolle and Judge Longstaff

shared my opinion that Ms. McPhillips was the best

qualified applicant to succeed Mr. Ailts as the Chief

Probation Officer of the United States District Court for

the Southern District of Iowa. All three of us voted for

her—Judge Longstaff first, I second, and Chief Judge

Wolle third.

App. 80

Further your affiant saith naught save that this affi-

davit is made in support of the defendants’ motion to

dismiss.

/s/ Harold D. Vietor

HAROLD D. VIETOR

Subscribed to and sworn to before me on

this 26th day of April, 1996.

/s/ James R. Rosenbaum

James R. Rosenbaum, Clerk

United States District Court

Southern District of Iowa

App. 81

[Filed May 7, 1996]

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

DAVID A. DUFFY,

Plaintiff, Civil No. 4-96-10184

CHARLES R. WOLLE,

HAROLD D. VIETOR, and

RONALD E. LONGSTAFF,

AFFIDAVIT OF RONALD E.

LONGSTAFF, JUDGE OF THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF IOWA

* eee He He HE HE OH OF

Defendants.

STATE OF IOWA

COUNTY OF POLK—ss:

RONALD E. LONGSTAFF, being first duly sworn,

hereby deposes and states as follows:

1. I joined the United States District Court for the

Southern District of Iowa in 1965 as a law clerk to the

Honorable Roy L. Stephenson in 1965; in 1968 I became

both the Clerk of the Court and the United States

Commissioner for the District. The latter position was

changed to a United States Magistrate position in 1970.

I then became the District’s first full-time Magistrate

Judge in 1976. I then became a United States District

Court judge in 1991.

2. I serve as liaison between the court and the Pro-

bation Office for the United States District Court for the

Southern District of lowa. After Chief Probation Officer

Edwin Ailts submitted notification of his intent to resign,

App. 82

Chief Judge Wolle, Judge Vietor, and I decided to pub-

licize the vacancy throughout the United States in an

effort to obtain a diverse, qualified pool of applicants for

the position. I became aware of the bi-weekly publication

of the Probation Division of the Administrative Office of

the United States Courts, News and Views. This publica-

tion, which is sent to every federal probation office, rou-

tinely carries vacancy announcements. Consistent with

the court’s interest in obtaining a diverse pool of well-

qualified applicants, the court decided to advertise the

Chief Probation Officer vacancy in News and Views. A

true and correct copy of my memo of October 19, 1993 to

Chief Judge Wolle and Judge Vietor regarding publi-

cation of the vacancy announcement in News and Views

is attached hereto as Exhibit A.

3. Following Mr. Ailts’ formal resignation on Decem-

ber 7, 1993, I arranged for publication of the vacancy

notice for the position of Chief Probation Officer in News

and Views. A true and correct copy of my memo confirm-

ing the publication as well as the vacancy announcement

are attached hereto as Exhibits B and C.

4. At Chief Judge Wolle’s request, I served as chair-

man of a panel to screen applicants for the position of

Chief Probation Officer. Don Nickerson, United States

Attorney for the Southern District of Iowa, Paul Zoss,

Federal Public Defender for the Southern District of

Iowa, and Edwin Ailts also served on the panel. The

panel was charged with the responsibility of reviewing

all applications and, where indicated, to conduct further

investigation by way of background investigation with

the probation offices in which the applicants worked as

well as with other governmental agencies. The ultimate

objective of the screening panel was to submit to the

App. 83

court a list of the best qualified applicants as determined

by the screening process. The members of the screening

panel agreed that any applicants from the Probation

Office for the Southern District of lowa would be includ-

ed in the list of applicants submitted to the court out of

deference to the local Probation Office and in the inter-

ests of promoting harmony between the court and the

local Probation office. The screening panel reviewed 16

applications. The screening panel recommended three

individuals for further consideration and interview by

the court: (1) David Duffy; (2) John Stites; and (3) L.

Jane McPhillips. Mr. Duffy and Mr. Stites were both

supervisors already in the local Probation Office. The

screening panel made no further recommendation to the

court with respect to the relative qualifications/merit of

the three finalist applicants. The screening panel did not

rate or prioritize the finalist applicants in any respect.

Copies of all applications were forwarded to Judge Wolle

and Judge Vietor. A true and correct copy of my corre-

spondence of March 3, 1994 summarizing the screening

panel’s recommendation is attached hereto as Exhibit D.

5. On March 10, 1994, Chief Judge Wolle, Judge

Vietor and I interviewed David Duffy, John Stites and L.

Jane McPhillips. Following the interviews, we met to

consider the application materials, references and inter-

views. During our deliberations, I was asked to state my

views first. 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. McPhillip’s strong academic background and work

experience but also by the recommendations which I had

received during phone conversations from Chief Judge

App. 84

Magnuson and Judge Rosenbaum of the District of

Minnesota. Both judges were highly complimentary in

their praise and recommendation of Ms. McPhillips. |

also had a phone conversation with Magistrate Judge

Earl Cudd of the District of Minnesota who provided Ms.

McPhillips with a strong recommendation. These phone

conversations took place prior to March 10, 1994. There-

after, Judge Wolle and Judge Vietor also expressed their

independent judgments that Ms. McPhillips was the best

qualified applicant for the position. Ms. McPhillips’ gen-

der played no role whatsoever in the court’s delibera-

tions.

Further, your affiant saith naught save that this affi-

davit is made in support of the defendants’ motion to

dismiss.

/s/ Ronald E. Longstaff

RONALD E. LONGSTAFF, Judge

U.S. District Court

Subscribed to and sworn to before me on

this lst day of May, 1996.

/s/ Diane F. Duncan

NOTARY PUBLIC

[Exhibits A-D omitted in printing. ]

App. 85

[Filed May 7, 1996]

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

DAVID A. DUFFY,

Plaintiff, Civil No. 4-96-10184

CHARLES R. WOLLE,

HAROLD D. VIETOR, and

RONALD E. LONGSTAFF,

AFFIDAVIT OF CHARLES R.

WOLLE, CHIEF JUDGE,

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF IOWA

Kee ee KE OH HF OF

Defendants.

STATE OF IOWA

COUNTY OF POLK—ss:

CHARLES R. WOLLE, being first duly sworn, hereby

deposes and states as follows:

1. I have served as a judge of the United States

District Court for the Southern District of lowa since

August of 1987; in May of 1992, I commenced serving as

Chief District Judge of the District and still serve as

Chief Judge.

2. On September 30 and October 1, 1993, I attended

an orientation for new chief judges presented by the

Administrative Office of the United States Courts in

Washington, D.C. I was informed that when we needed

to select a replacement for Edwin Ailts, our chief proba-

tion officer, we should advertise the position in a publica-

tion of national circulation to reach all persons who

App. 86

might be interested so we could have an open, nation-

wide, diverse pool of qualified applicants.

3. On October 19, 1993, Edwin Ailts submitted writ-

ten confirmation of his intention to resign on or about

May 1, 1994. I attach as Exhibit A copy of that notifica-

tion. Upon receipt of Ailts’ notice, I conferred with

Judges Harold D. Vietor and Ronald E. Longstaff to

decide how we would select his replacement. We knew

the final choice would be made by the three of us pursu-

ant to 18 U.S.C. Section 3602. We decided to establish a

screening panel comprised of Judge Longstaff, U.S.

Public Defender Paul Zoss, U.S. Attorney Don Nickerson,

and Edwin Ailts to review all applications and then

submit to us the names of three to seven applicants

whom we could interview in person as best qualified for

the position of Chief Probation Officer. We also decided

to defer publication of the vacancy notice until Ailts had

tendered his formal resignation. I attach as Exhibit B a

true copy of my letter to Edwin Ailts dated October 20,

1993, explaining the applicant screening process.

4. On December 7, 1993, Edwin Ailts tendered his

formal notice of resignation effective April 29, 1994. I

attach as Exhibit C a copy of that notice.

5. We then prepared a vacancy announcement and

submitted it for publication in News and Views, a bi-

weekly publication of the Probation Division of the

Administrative Office of the United States Courts,

advertising the position of Chief Probation Officer for the

Southern District of lowa. I believe the Administrative

Office in December of 1993 circulated this publication

nationwide to all probation officers. I attach as Exhibits

D and E, respectively, copies of Judge Longstaff’s

App. 87

memorandum of December 13, 1993, regarding submis-

sion of the vacancy announcement to the Administrative

Office of the United States Courts and the vacancy an-

nouncement itself.

6. The screening panel received 16 applications for

the vacancy and reviewed the applicants’ qualifications.

The screening panel submitted to the district judges the

names of three applications for the Chief Probation

Officer vacancy: (1) David Duffy; (2) John Stites; and (3)

L. Jane McPhillips. I attach as Exhibits F, G and H,

respectively, copies of the applications of Duffy, Stites,

and McPHillips. Mr. Duffy and Mr. Stites were both

supervisors in the probation office for the Southern

District of Iowa.

7. On March 10, 1994, we three district judges inter-

viewed individually each of the three applicants recom-

mended by the screening panel. We then voted and

unanimously selected L. Jane McPhillips to serve as the

Chief Probation Officer of the United States District

Court for the Southern District of lowa commencing on

May 2, 1994.

8. 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 educa-

tion, 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.

9. On March 14, 1994, I signed an Order Appointing

Ms. McPhillips as Chief Probation Officer for the South-

ern District of lowa. I attach as Exhibit I a copy of that

order.

App. 88

10. Attached hereto as Exhibit J is a copy of the EEO

Plan adopted by the United States District Court,

Southern District of Iowa, on February 25, 1987, and in

effect at the time Ms. McPhillips was appointed.

11. Attached hereto as Exhibit K is a copy of the

“Rules for Processing Complaints against Judges of the

Eighth Circuit” in effect at the time Ms. McPhillips was

appointed.

12. Before filing this suit, Mr. Duffy never pursued or

filed any type of administrative or judicial action involv-

ing his allegations in this case.

Further your affiant sayeth naught save that this

affidavit is made in support of the defendants’ motion to

dismiss.

/s/ Charles R. Wolle

CHARLES R. WOLLE

Subscribed and sworn to before me on

this 30 day of April, 1996.

/s/ Nay S. Ryan

NOTARY PUBLIC

[Exhibits A-D, F-G & I-K omitted in printing]

App. 89

EXHIBIT E

VACANCY ANNOUNCEMENT

POSITION: CHIEF PROBATION OFFICER

SALARY: $56,627 - $101,558

GRADE: JSP 14, 15, 16

LOCATION: Des Moines, lowa

STARTING DATE: May 2, 1994

CLOSING DATE:

FOR APPLICATIONS: Feb. 15, 1994

DESCRIPTION OF DISTRICT, WORKLOAD AND DUTIES

DISTRICT: The Southern District of Iowa serves 47

counties with three district court judges, 1 senior judge,

and two full-time magistrate judges.

PROBATION OFFICE: Authorized staff includes 10 pro-

bation officers and 4 clerical positions. There is one PC

systems administrator and one administrative analyst.

DUTIES OF THE CHIEF PROBATION OFFICER: In-

cumbent is responsible in accordance with the applicable

statutes of title 18 U.S.C. 3152 and 3602 - 3603 to the

district court, the Judicial Conference of the United

States, and the Administrative Offices of the United

States Courts, and the U.S. Parole Commission for

supervision programs in the judicial district.

Duties include but are not limited to the following:

1. Organizes probation office to ensure expeditious and

effective handling of investigations and supervision

of pretrial cases, probations, parolees, and supervised

releases for the courts, parole authorities and institu-

tions;

App. 90

2. Reviews, analyzes and interprets statutory, Judicial

Conference, and Parole Commission requirements for

administration of probation and parole services; pro-

mulgates policies, procedures and guidelines needed

to meet these requirements:

3. Maintains administrative liaison with the court to

include promulgating polices, procedures and guide-

lines, and standards to ensure appropriate level of

service delivery to meet the unique needs of the

court;

4. Selects and recommends candidates for appointment

as probation officers to the court: appoints all clerical

personnel; provides recommendations to the court in

other personnel matters, such as disciplinary actions

and dismissals. Authority in such matiers as promo-

tions and salary increases has been delegated to the

ch.ef probation officer by the court; determines all

personnel are carefully selected and adequately

trained and that their performance is systematically

evaluated;

q

Supervises all office staff:

6. Prepares estimates of personnel needs and operating

budget, solicits and negotiates contracts for sub-

stance abuse and mental health aftercare services,

and certifies all vouchers for payment; establishes

and administers consistent in-service training to

ensure high quality service delivery;

8. Maintains system of communication that enables

awareness at all levels; delegates decisionmaking

responsibility; provides qualitative and quantitative

measures of work performance, ensures accountabili-

ty with minimal interference to service delivery;

ni A

App. 91

9. Maintains liaison with the chief judge and other

judges; makes specific recommendations regarding

court-related criminal justice issues (emphasis on

matters relating to sound sentencing practices);

10. Establishes and maintains cooperative relationships

with other probation and pretrial service offices to

ensure prompt and effective assistance to their re-

quests;

11. Establishes and maintains cooperative relationships

with all components of the criminal justice system to

include Federal, state, or local law enforcement, cor-

rectional, and social service agencies;

12. Promotes and maintains conditions which encourage

staff loyalty, enthusiasm and morale;

13. Develops and maintains a public relations program

that explains probation, parole, and other correction-

al services to the community and assumes responsi-

bility for communicating with news media;

14. Monitors community events and issues with special

attention to alleviating hazardous office and field

incidents;

15. Performs related duties as required by the Court.

QUALIFICATION REQUIREMENTS: A 4-year degree

from an accredited college or university with specializa-

tion 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, to qualify for

the position of chief probation officer, JSP 14, 15, or 16,

applicants must possess the following years of specialized

experience: JSP 14-6 years specialized experience; JSP

App. 92

15-7 years specialized, experience JSP 16-8 years special-

ized experience, 1 year of which must have been at the

next lower grade level or its equivalent.

SPECIALIZED EXPERIENCE: Progressively responsible

experience, including management responsibility, in the

investigation, supervision, counseling, and guidance of

offenders in community corrections or pretrial programs,

is required. Experience in closely related fields such as

educator, guidance counselor, social workers, casework-

ers, psychologist,substance abuse counselor, and correc-

tional researcher may satisfy a portion of the specialized

experience. Specialized experience must have been

earned after the bachelor’s degree was granted. Ap-

plicants may substitute no more than 2 years of the

specialized experience with academic achievement as

prescribed by the Judiciary Salary Plan.

APPLICATION PROCESS: Letters of application and

resumes for this position must be submitted to James R.

Rosenbaum, Clerk of the Court, 123 East Walnut, U-S.

Courthouse, Suite 200, Des Moines, Iowa 50309-2040.

The person selected to fill the position must undergo a

full field background investigation conducted by the

Federal Bureau of Investigation. RELOCATION EX-

P N THOR :

***THE COURT IS AN EQUAL OPPORTUNITY EMPLOYER***

App. 93

EXHIBIT H

1100 St. Croix Heights

Hudson, WI 54016

December 29, 1993

Mr. James R. Rosenbaum

Clerk of the Court

123 East Walnut

U.S. Courthouse, Suite 200

Des Moines, LA 50309-2040

Dear Mr. Rosenbaum:

This is in reference to the Chief Probation Officer

position vacancy in the Southern District of Iowa. I am

writing to express my interest in the position and am

enclosing a resume. I presently hold a supervisory

position in the District of Minnesota.

In addition to the resume, I am providing a letter of

reference from Chief Probation Officer Glenn Baskfield,

and a list of proposed additional references.

Thank you very much for your anticipated consider-

ation.

Sincerely,

/s/ L. Jane McPhillips

L. Jane McPhillips

Supervising U.S. Probation Officer

Enclosures

App. 94

JANE MCPHILLIPS

Juris Doctor, William Mitchell College of Law

(St. Paul, Minnesota) 1984

Master of Arts, Counseling and Guidance,

University of Minnesota, (Duluth) 1972

Bachelor of Science, Psychology,

lowa State University (Ames) 1969

1972 to Present UNITED STATES DISTRICT COURTS

Supervising U.S. Probation Officer: June 1990 to present

U.S. Probation Officer, May 1989 to June 1990

District of Minnesota, Minneapolis Headquarters

Office

Number of staff supervised: Nine

Responsibilities include assigning and monitoring

presentence investigations, conducting personnel

evaluations, and providing continuing education or

staff on sentencing guidelines, case law and legisla-

tion.

U.S. Probation Officer: August 1984 to May 1989

Northern District of Texas, Forth Worth and Arling-

ton

Responsibilities included writing presentence reports

and supervising offenders.

App. 95

Officer in Charge: January 1984 to August 1984

District of Minnesota, St. Paul Office

Number of staff supervised: Three

Responsibilities included assignment of presentence

and supervision cases, and general office manage-

ment

U.S. Probation Officer: December 1972 to January 1984

District of Minnesota, Minneapolis (1972 to 1980)

and St. Paul (1980 to 1984).

Responsibilities included writing presentence reports

and supervising offenders.

Member of the State Bar of Texas since 1985

Nominee: Users Subgroup on Automated Judgment and

Commitment Order, Administrative Office of the Courts

(1993)

Member of 13-person national Task Force on Revised

Presentence Format (1989 to 1992)

Temporary duty positions with the Administrative Office

of the U.S. Courts (1977) and the U.S. Sentencing Com-

mission (1989)

Board Member and President of Project Elan (non-profit

treatment program for women felony offenders, 1974 to

1980)

Residence: 1100 St. Croix Heights Home: (715) 386-6526

Hudson, WI 54026 Office: (612) 348-1980

App. 96

References

The Honorable Diana E. Murphy

Chief U.S. District Judge

Minneapolis, MN

(612) 348-1601

The Honorable Paul A. Magnuson

U.S. District Judge

St. Paul, MN

(612) 290-3967

The Honorable James M. Rosenbaum

U.S. District Judge

Minneapolis, MN

(612) 348-1926

The Honorable Donald D. Alsop

Senior U.S. District Judge

St. Paul, MN

(612) 290-3000

The Honorable Harry H. MacLaughlin

Senior U.S. District Judge

Minneapolis, MN

(612) 348-1951

Glenn Baskfield

Chief U.S. Probation Officer

Minneapolis, MN

(612) 348-1980

Garold T. Ray

Deputy Chief U.S. Probation Officer

Minneapolis, MN

(612) 348-1980

Don Hardaway

Chief U.S. Probation Officer

Dallas, Texas

(214) 767-3019