Duffy v. Wolle
| Citation | 123 F.3d 1026 |
| Decision Date | 29 October 1997 |
| Docket Number | No. 96-3210,96-3210 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1637, 153 A.L.R. Fed. 785, 73 Empl. Prac. Dec. P 45,273, 39 Fed.R.Serv.3d 331 David A. DUFFY, Appellant, v. Charles R. WOLLE; Harold D. Vietor; Ronald Longstaff, Sued as Ronald E. Longstaff, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
James Baker, Springfield, IL, argued (T. James McDonough, Des Moines, IA, on the brief), for appellant.
Lawrence Kudej, Assistant U.S. Attorney for the Northern District of Iowa, Cedar Rapids, IA, argued, for appellee.
Before WOLLMAN and MAGILL, 1 Circuit Judges, and GOLDBERG, 2 Judge.
David Duffy sought to be appointed to the position of Chief United States Probation Officer (CUSPO) for the United States District Court for the Southern District of Iowa. A panel of three United States District Judges for the Southern District of Iowa, comprised of Chief Judge Charles R. Wolle, Judge Harold D. Vietor, and Judge Ronald E. Longstaff (Panel), appointed a female applicant to the CUSPO position. Because the Panel did not appoint him, Duffy subsequently brought this Bivens action against the Panel, alleging a Fifth Amendment due process violation for the denial of equal protection through the practice of reverse discrimination. The district court 3 granted summary judgment to the Panel, and Duffy now appeals. We affirm.
On April 29, 1994, Edwin Ailts resigned from the CUSPO position for the United States District Court for the Southern District of Iowa. Ailts had served as a probation officer since 1963 and as the CUSPO for the Southern District of Iowa since 1974. Although Ailts tendered his formal resignation on December 7, 1993, he had notified the Panel during the Fall of 1993 of his intention to resign.
The Panel had the statutory authority to appoint a successor to Ailts to fill the CUSPO position in the Southern District of Iowa. See 18 U.S.C. § 3602. On September 30 and October 1, 1993, Chief Judge Wolle attended a conference in Washington, D.C., presented by the Administrative Office of the United States Courts. While at the conference, Chief Judge Wolle states that he
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, p 2, reprinted in I J.A. at 17-18, Tab 5. In an affidavit, Ailts recounts that:
At some time following the time I informed the [Panel] of my intention to retire I had a passing conversation with Judge Charles Wolle. At that time he had recently returned from Washington, D.C. He made a comment that while in Washington he had received information about an interest in the appointment of a female. At this time I cannot recall the specific entity that he indicated expressed that interest to him. I assumed at that time that he was referring to the Chief Probation Officer position which would be vacated upon my retirement since I had only recently indicated my intention to retire and I was unaware of any other vacant positions. This was a brief conversation with Judge Wolle and the comment was made by him in passing.
Ailts Aff. (June 14, 1996) at 1-2, p 3, reprinted in II J.A. at 143-44, Tab 14. Duffy contends that:
In October of 1993 I had a conversation with Mr. Ailts. During that conversation he informed me that Charles Wolle, the Chief Judge of the COURT, had recently returned from a conference in Washington with the Administrative Office of the United States COURTS. He informed Mr. Ailts that the Administrative Office was recommending an aggressive effort on the part of the COURT to recruit minorities and females as candidates for the Chief Probation Officer position which was becoming vacant.
Duffy Aff. (June 13, 1996) at 8, p 20, reprinted in II J.A. at 124, Tab 10.
The Panel prepared a vacancy announcement for the CUSPO position and posted it in News and Views, a bi-weekly publication of the Probation Division of the Administrative Office of the United States Courts that was circulated nationwide to all probation officers. The vacancy announcement stated that, to be qualified for the CUSPO position, an applicant must possess I J.A. at 25, Tab 5. The required "specialized experience" included "[p]rogressively responsible experience, including management responsibility, in the investigation, supervision, counseling, and guidance of offenders in community corrections or pretrial programs." Id. The vacancy announcement also explained that, as part of his duties, a CUSPO "[r]eviews, analyzes, and interprets statutory, Judicial Conference, and Parol Commission requirements for administration of probation and parole services; promulgates policies, procedures and guidelines needed to meet these requirements...." Id.
The Panel created a screening committee to review applications for the CUSPO position. The screening committee members included Judge Longstaff, Ailts, Don Nickerson, who was the United States Attorney for the Southern District of Iowa, and Paul Zoss, who was the Federal Public Defender for the Southern District of Iowa. The screening committee was to select three to seven of the best qualified candidates for the CUSPO position and refer those applicants to the Panel.
The screening committee received sixteen applications for the CUSPO position. As a courtesy to applicants who were currently employed as probation officers for the Southern District of Iowa, the screening committee elected to forward all such applicants to the Panel for consideration. The screening committee ultimately forwarded three names to the Panel: Jane McPhillips, who was a Supervising United States Probation Officer for the District of Minnesota; Duffy, who was a Supervising United States Probation Officer for the Southern District of Iowa; and John Stites, who was a Senior United States Probation Officer for the Southern District of Iowa.
McPhillips had worked as a United States Probation Officer since 1972, and had been a supervising probation officer since 1990. During her tenure, McPhillips had served in the District of Minnesota office, the Northern District of Texas office, and in temporary duty positions with the Administrative Office of the United States Courts and the United States Sentencing Commission. McPhillips held a bachelor's degree in psychology, a master's degree in counseling and guidance, and a juris doctorate. McPhillips had been a licensed attorney since 1985, and was a member of the state bar of Texas.
Duffy had served as a United States Probation Officer since 1974, and had served as a supervising probation officer since 1990. Duffy had served only in the Southern District of Iowa. Duffy held a bachelor's degree in psychology, a master's degree with an emphasis in rehabilitation, psychological counseling, and corrections, and in 1971-72 had participated in, but had not completed, an educational and school psychology doctoral program.
A full description of Stites's qualifications is not contained in the record. See I J.A. at 34-36, Tab 5 (incomplete resume of John Stites). It appears, however, that Stites had less experience than either McPhillips or Duffy as a probation officer, see id. at 34 (), and there is no indication that Stites had ever earned an advanced degree.
The Panel interviewed each of the applicants. While the members of the Panel were personally familiar with Duffy's and Stites's work, Panel members contacted judges in Minnesota to obtain other jurists' impressions of McPhillips. Judge Vietor explained that he "spoke personally with Judge James Rosenbaum and Senior Judge Harry MacLaughlin of the United States District Court for the District of Minnesota," and that they "spoke very well of Ms. McPhillips'[s] abilities and unequivocally and highly recommended her for the position of Chief Probation Officer." Vietor Aff. (Apr. 26, 1996) at 2, p 4, reprinted in I J.A. at 99, Tab 6. Judge Longstaff stated that he had spoken with Chief Judge Magnuson and Judge Rosenbaum of the District of Minnesota. "Both judges were highly complimentary in their praise and recommendation of Ms. McPhillips." Longstaff Aff. (May 1, 1996) at 4, p 5, reprinted in II J.A. at 104, Tab 7.
In addition, the Panel received recommendations regarding McPhillips and Duffy from their current supervisors. Ailts, Duffy's outgoing supervisor, recommended that Duffy be appointed. See Ailts Aff. at 2, p 5, reprinted in II J.A. at 144, Tab 14. Glenn Baskfield, CUSPO for the District of Minnesota and McPhillips's supervisor, advised the Panel that "there is little doubt that [McPhillips] would make an excellent Chief Probation Officer." I J.A. at 41, Tab 5.
The Panel unanimously agreed to appoint McPhillips to the position of CUSPO for the Southern District of Iowa. Each member of the Panel has unequivocally declared that McPhillips was the best candidate for the position, and that her gender did not play a role in their decision to appoint her. Chief Judge Wolle stated that:
At no time during the selection process did gender play any role in our consideration of the applicants. I voted to select McPhillips because she was the most qualified person by reason of her experience, her education, her demeanor during the interview,...
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