# Appendix — Duffy v. Wolle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1137

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2255%3A2. Public record. Not legal advice.