United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 96-3210
                                  ___________

David A. Duffy,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Charles R. Wolle; Harold D. Vietor;    *
Ronald Longstaff, Sued as Ronald E.    *
Longstaff,                             *
                                       *
            Appellees.                 *
                                  ___________

                           Submitted: March 13, 1997
                               Filed: August 19, 1997
                                 ___________

Before WOLLMAN and MAGILL,1 Circuit Judges, and GOLDBERG,2 Judge.
                          ___________

MAGILL, Circuit Judge.

    David Duffy sought to be appointed to the position of
Chief United States Probation Officer (CUSPO) for the
United States District Court for the Southern District of
Iowa. A panel of three United States District Judges for

      1
       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 designation.
the Southern




               -2-
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 court3 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 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



     3
       The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.

                                     -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.




                      -4-
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 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, ¶ 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, ¶ 20, reprinted in II


                           -5-
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




                           -6-
CUSPO position, an applicant must possess "[a] 4-year
degree from an accredited college or university with
specialization in one or more of the social sciences
appropriate to the position to be filled. An advanced
degree in an appropriate area is preferred. In addition
. . . applicants must possess [at least six] years of
specialized experience . . . ." I J.A. at 25, Tab 5.
The    required    "specialized    experience"   included
"[p]rogressively    responsible   experience,   including
management    responsibility,   in    the  investigation,
supervision, counseling, and guidance of offenders in
community corrections or pretrial programs." 

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 . . . ." 

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

                           -7-
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.




                           -8-
    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 

(noting that
Stites was employed in 1976 by the Bi-State Metropolitan
Planning Commission in Rock Island, Illinois), and there
is no indication that Stites had ever earned an advanced
degree.
    The Panel interviewed each of the applicants. While
the members of the Panel were personally familiar with

                           -9-
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.




                           -10-
26, 1996) at 2, ¶ 4, reprinted in I J.A. at 99, Tab 6.
Judge Longstaff stated that he had spoken with Chief
Judge Magnuson and Judge Rosenbaum of the District of
Minnesota.   "Both judges were highly complimentary in
their praise and recommendation of Ms. McPhillips."
Longstaff Aff. (May 1, 1996) at 4, ¶ 5, reprinted in II
J.A. at 104, Tab 7.

    In addition, the Panel received recommendations
regarding McPhillips and Duffy from their current
supervisors.   Ailts,    Duffy's   outgoing    supervisor,
recommended that Duffy be appointed. See Ailts Aff. at
2, ¶ 5, reprinted in II J.A. at 144, Tab 14.         Glenn
Baskfield, CUSPO for the District of Minnesota and
McPhillips's supervisor, advised the Panel that "there is
little doubt that [McPhillips] would make an excellent
Chief Probation Officer." I J.A. at 41, Tab 5.

    The Panel unanimously agreed to appoint McPhillips to
the position of CUSPO for the Southern District of Iowa.
Each member of the Panel has unequivocally declared that
McPhillips was the best candidate for the position, and
that her gender did not play a role in their decision to
appoint her. Chief Judge Wolle stated that:

    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, the letters of
    reference received with her resume, and the
    uniformly very complimentary comments of the
    Minnesota district judges and court officers we
    phoned.

                           -11-
Wolle Aff. at 3-4, ¶ 8, reprinted in I 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]    experience,   which   included
      significant supervisory responsibility in the
      District of Minnesota.     I was also impressed
      with Ms. McPhillips'[s] academic accomplishments
      which included going to law school and




                                         -12-
      obtaining a juris doctor degree while she was
      serving as a probation officer in Minnesota.
      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
      commented 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 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
      applicants to assume the responsibilities of
      Chief Probation 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 received 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, ¶ 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 Iowa beginning May 2, 1994.
See I J.A. at 43, Tab 5.
      Subsequently, Duffy spoke with Judge Longstaff during
a fifty-minute meeting about the Panel's decision to
appoint another candidate, and Judge Longstaff told Duffy
that "it had been a very difficult decision . . . ."

                                        -13-
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]




                          -14-
had presented in [his] interview." 

¶ 26,
reprinted in II J.A. at 126-27, Tab 10.

     Although the Southern District of Iowa had in place
an Equal Employment Opportunity Plan (EEO Plan) that
provided a mechanism for pursuing complaints of
employment discrimination, Duffy did not access any
administrative remedies.    Instead, on March 8, 1996,
Duffy filed a Bivens action against the Panel. In his
complaint, Duffy alleged that the Panel had violated
Duffy's Fifth Amendment right to due process when it
denied Duffy equal protection under the law by hiring a
"substantially less qualified female applicant" because
of her gender. See Compl. at 4, ¶ 11, reprinted in I
J.A. at 6, Tab 2. Duffy sought a declaratory judgment
that   the Panel had acted unconstitutionally, an
injunction requiring his appointment to the CUSPO
position, unspecified monetary damages, and costs and
attorney's fees. 

¶¶ A-D, reprinted in I
J.A. at 7-8, Tab 2.

    The Panel filed a motion to dismiss with the district
court.    Because the motion had been supported by
affidavits and accompanying documents, the district court
construed the motion as a motion for summary judgment.
See Mem. Op. & Order (Aug. 5, 1996) at 1, reprinted in II
J.A. at 158, Tab 18. The district court rejected several
of   the Panel's arguments, including the Panel's
contention that Duffy was precluded from bringing a
Bivens   action   because    of   the   availability   of
administrative remedies, see 

reprinted in II
J.A. at 168, Tab 18, and the Panel's claim of absolute
immunity. See 

reprinted in II J.A. at 171,

                           -15-
Tab 18.    After conducting an analysis of qualified
immunity, the district court granted summary judgment to
the Panel. 

reprinted in II J.A. at 178-79,
Tab 18 ("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, 

, 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" (footnote omitted)).




                          -16-
       Prior to the district court's grant of summary judgment, Duffy's counsel had filed
a Federal Rule of Civil Procedure 56(f)4 affidavit and a Memorandum in Opposition to
the Motion to Dismiss expressing the need for additional discovery. See Baker Aff.
(June 17, 1996) at 2, ¶ 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 Plaintiff's [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, § 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 or stay any consideration of that motion and allow the Plaintiff to
undertake discovery."). The district court, however, concluded that additional
discovery was unnecessary. See Mem. Op. & Order at 21, reprinted in II J.A. at 178,
Tab 18 ("[T]he 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.").
Duffy now appeals.




                                          II.


      4
       Rule 56(f) provides:

      Should it appear from the affidavits of a party opposing the motion that
      the party cannot for reasons stated present by affidavit facts essential to
      justify the party's opposition, the court may refuse the application for
      judgment or may order a continuance to permit affidavits to be obtained
      or depositions to be taken or discovery to be had or may make such other
      order as is just.

Fed. R. Civ. P. 56(f).

                                          -17-
    We review the district court's grant of summary
judgment de novo. See Helfter v. United Parcel Serv.,
Inc., 

, 615 (8th Cir. 1997). We may affirm
the district court's grant of summary judgment only if,
examining 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.'"       

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." 

(quotations and
citations 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 objective. See Davis v. Passman, 

, 234-35 (1979).     In Bivens v. Six Unknown Fed.
Narcotics Agents, 

(1971), the Supreme Court
recognized in the Constitution and the general federal
question jurisdictional statute, 28 U.S.C. § 1331, an
inherent cause of action for damages against federal
actors for violations of federal constitutional rights.
See 

("it is well settled that
where legal rights have been invaded, and a federal
statute provides for a general right to sue for such

                           -18-
invasion, federal courts may use any available remedy to
make good the wrong done" (quotations, citation, and
alteration omitted)).     Duffy's claim of employment
discrimination is, accordingly, a cognizable Bivens
action.    See 

(congressman's
secretary could pursue Bivens action against employer
when she was dismissed solely because of her gender).



                          A.




                          -19-
    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,

, 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 

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 "paradigmatic judicial acts involved in
resolving disputes between parties who have invoked the
jurisdiction of a court," 

"[a]dministrative
decisions, even though they may be essential to the very
functioning of the courts, have not similarly been
regarded as judicial acts." 

    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 

and
that the judge was not eligible for absolute immunity.

See also Bryant v. O'Connor, 

,
1067 (10th Cir. 1988) (absolute immunity not available to
federal judge sued for racial discrimination in

                           -20-
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
administrative   tasks   of  evaluating   and   promoting
employees."    Appellees' Br. at 15.      While this is
undoubtedly correct, we fail to see how these additional
considerations can transform an administrative decision,
albeit an extremely important administrative decision,
into a judicial one. We conclude that the district court
correctly held that the Panel is not eligible for
absolute immunity in this matter.




                           -21-
                                  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 absence of affirmative action by

. In the instant matter, the
Panel    contends  that    "special         factors     counseling
hesitation" exist because Duffy could have filed an
administrative complaint regarding the alleged employment discrimination
under the EEO Plan for the United States District Court
for the Southern District of Iowa. See Appellees' Br. at
20.    Because Duffy could have accessed the EEO Plan
remedies, the Panel suggests that Duffy's suit be
dismissed. See, e.g., Carter v. Kurzejeski, 

, 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 altogether" (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, 

(8th Cir. 1991), we emphasized that:

         Only Congress has the power to decide that
     a statutory or administrative scheme will
     foreclose a Bivens action.       To allow an


                                  -22-
    administratively-created scheme to 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.

(citations omitted) (emphasis added).     In
this case, the Panel has presented no support that
Congress intended to delegate to the Judicial Conference
the authority




                          -23-
to preempt a Bivens action in favor of administrative
remedies.   We accordingly conclude that Duffy is not
forestalled from pursuing a Bivens action on this ground.

                           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 liability for civil damages insofar as
their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 

, 818 (1982).     "This is an objective standard,"
Swenson v. Trickey, 

, 133 (8th Cir. 1993),
and its application to the circumstances of a particular
case presents a question of law. 

held that

    [a] right is 'clearly established' for qualified
    immunity 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 unlawful, but it is to say
    that in the light of pre-existing law the
    unlawfulness must be apparent.

(quotations, citations, and alterations
omitted).

    In Davis, filed in 1979, the Supreme Court made clear
that federal employees have a Fifth Amendment right to be
free of discrimination on the basis of gender. See 442

                           -24-
U.S. at 234-35.     In    Regents of the University of
California v. Bakke, 

(1978), the Court
considered a claim of reverse discrimination on the basis
of race, and declared that "[p]referring members of any
one group for no reason other than race or ethnic origin
is discrimination for its own sake.             This the
Constitution forbids."    

  It was thus well
established 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




                           -25-
concepts was readily perceivable by 1993, the time of the
Panel's alleged constitutional violation. We therefore
agree with the district court that a reasonable person
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 gender
discrimination. See Mem. Op. & Order at 18, reprinted 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." 

n.4, reprinted in II
J.A. at 173, Tab 18. Accordingly, we address the merits
of Duffy's Bivens action.5

                                        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

      5
       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 recognize that our analysis differs from that of the district court,"
Yowell v. Combs, 

, 544 n.4 (8th Cir. 1996), we may "affirm the district
court on any grounds supported by the record." 

court's grant of
summary judgment); see also Tyus v. Schoemehl, 

, 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,

(1997).

                                         -26-
shifting analysis for evaluating the merits of Title VII
claims in McDonnell Douglas Corp. v. Green, 

(1973), and Texas Dep't of Community Affairs v. Burdine
, 

(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




                          -27-
    burden, the record must demonstrate that
    plaintiff can prove: 1) that she is a member of
    a protected class; 2) that she applied and was
    qualified for a job for which the employer was
    seeking applicants; 3) that she was rejected;
    and 4) that after rejecting plaintiff the
    employer continued to seek applicants with
    plaintiff's qualifications. . . . Under Title
    VII she must show that the employer hired a man
    for the position. . . . The prima facie case, in
    the absence of an explanation from the employer,
    creates    a    rebuttable     presumption    of
    discrimination.

        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
    rejected, or someone else was preferred, for a
    legitimate, nondiscriminatory reason. This is a
    burden of production not proof. The defendant
    need not persuade the court, it must simply
    provide evidence 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 defendant has met its burden
    of production.    Plaintiff 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, 

, 957-58 (8th
Cir. 1995) (quotations and citation omitted). See also
Lang v. Star Herald, 

, 1311 (8th Cir. 1997)
("Once the [defendant] advances a nondiscriminatory
reason, [the plaintiff] must show, in this summary
judgment proceeding, that she has sufficient admissible


                          -28-
evidence 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, 

, 515 (1993);
Ryther v. KARE 11, 

, 838 n.5 (8th Cir.) (en
banc), cert. denied, 

(1997); 

n.13 (Part I.A. of concurring and dissenting
opinion, in which eight active judges joined))), petition
for cert. filed, (U.S. June 5, 1997) (No. 96-9275).




                           -29-
    In reverse discrimination cases, several courts have
held that, to present a prima facie case, a plaintiff
must show "that background circumstances support the
suspicion that the defendant is that unusual employer who
discriminates against the majority."           Murray v.
Thistledown Racing Club, Inc., 

, 67 (6th Cir.
1985) (quotations and citations omitted); see also
Bishopp v. District of Columbia, 

, 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 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 discriminate against them." (quotations,
citations, and alterations omitted)). However, "[j]ust
because a reverse discrimination claimant cannot show the
background circumstances 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 evidence of that discrimination,
should be permitted to proceed beyond the prima facie
case stage of litigation." Notari v. Denver Water Dep't,

, 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 McDonnell

                           -30-
Douglas analysis to his Bivens claim. We agree. While
a Title VII analysis is not always identical to a
constitutional   analysis,    see,   e.g.,   Johnson   v.
Transportation Agency, 

, 627 n.6 (1987)
(rejecting argument 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., 

, 598
(8th Cir. 1992).    "[A]n action under Bivens is almost
identical to an




                           -31-
action under section 1983, except that the former is
maintained against federal officials while the latter is
against state officials." Sanchez v. United States, 

, 1330 (8th Cir. 1995) (per curiam) (quotations
and citations omitted); see also Chin v. Bowen, 

, 24 (2d Cir. 1987) ("Both Bivens and section 1983
actions   are    designed   to   provide   redress   for
constitutional violations. 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
suspicion that the [Panel] is that unusual employer who
discriminates against the majority." 

(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

                           -32-
at 958 (quotations omitted).     The Panel has met this
burden.   Each member of the Panel explained, in their
affidavits, that McPhillips was selected on the basis of
non-discriminatory criteria. See Wolle Aff. at 3-4, ¶ 8,
reprinted in I J.A. at 19-20, Tab 5; Vietor Aff. at 2-3,
¶ 5, reprinted in I J.A. at 99-100, Tab 6; Longstaff Aff.
at 3-4, ¶ 5, reprinted in II J.A. at 103-04, Tab 7.
These   criteria    include   McPhillips's    experience,
education, and demeanor during her interview, as well as
the strong recommendations of jurists familiar with
McPhillips's work.




                           -33-
    Because   the   Panel   successfully   rebutted   the
presumption of discrimination created by Duffy's prima
facie case, "the burden shifts back to [Duffy]" to
"establish the existence of facts which if proven at
trial would permit a jury to conclude that the
defendant[s'] proffered reason is pretextual and that
intentional discrimination was the true reason for the
defendant[s'] actions."    

.    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, 

, 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 position can support a finding
that the employer's nondiscriminatory reason for the
hiring was pretextual.     Cf. 

("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 employer acted out of a
discriminatory motive").    See also Chock v. Northwest
Airlines, Inc., 

, 864 (8th Cir. 1997)
("Where, as here, the employer contends that the selected
candidate was more qualified for the position than the
plaintiff, a comparative analysis of the qualifications

                           -34-
is relevant to determine whether there is reason to
disbelieve the employer's proffered reason for its
employment decision. . . . [A] comparison that reveals
that the plaintiff was only similarly qualified or not as
qualified as the selected candidate would not raise an
inference of racial discrimination."). Identifying those
strengths that constitute 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




                           -35-
to the extent that those judgments involve intentional
discrimination." Hutson v. McDonnell Douglas Corp., 

, 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
management training. See Appellant's Br. at 31-32. We
disagree. In light of McPhillips's competing areas of
expertise, it is not evidence of pretext that Duffy had more
experience in certain areas than did McPhillips but was
nevertheless not selected for the position.            It is
inevitable that two candidates with a combined forty
years of experience as probation officers will have
different strengths. We do not see how the Panel's
preference for McPhillips's depth of experience in the
area of presentence investigation over Duffy's breadth of
experience in the areas of pretrial and supervision can
be interpreted as pretextual for gender discrimination.
See 

qualifications).

    It is uncontested that McPhillips received glowing
recommendations from Minnesota jurists, and Duffy does
not   challenge the Panel members' perceptions of
McPhillips's   interviewing   skills.      In   comparing
McPhillips's objective qualifications with Duffy's, it is
apparent that McPhillips was not "substantially less
qualified" than Duffy. McPhillips had two years more
experience than Duffy as a United States Probation
Officer. While Duffy had only a bachelor's degree and a
master's degree, McPhillips had a bachelor's degree, a


                            -36-
master's degree, and a law degree.6                      While Duffy




      6
        Duffy contends that "a law degree was not considered as relevant for the
position in the vacancy announcement." Appellant's Br. at 35 n.13. We disagree. The
Vacancy Announcement specified that, as part of his duties, a CUSPO "[r]eviews,
analyzes, and interprets statutory, Judicial Conference, and Parol Commission
requirements for administration of probation and parole services . . . ." I J.A. at 25,
Tab 5. We believe that legal training would clearly be valuable to someone performing
these duties.

                                         -37-
only had experience in the Southern District of Iowa,
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, ¶ 2, reprinted in I J.A. at 17-18, Tab 5
(recounting that the Administrative Office wished the
Panel to "advertise the [CUSPO] position in a publication
of national circulation to reach all persons who might be
interested so [the Panel] could have an open, nationwide,
diverse pool of qualified applicants"); Ailts Aff. at 1-
2, ¶ 3, reprinted in II J.A. at 143-44, Tab 14
(describing a statement by Chief Judge Wolle "about an
interest in the appointment of a female" to what Ailts
assumed was the CUSPO position); Duffy Aff. at 8, ¶ 20,
reprinted in II J.A. at 124, Tab 10 (contending that "the
Administrative Office was recommending an aggressive
effort on the part of the COURT to recruit minorities and
females as candidates for the Chief Probation Officer
position which was becoming vacant").7

      7
        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 recruit female applicants for the CUSPO position.

                                         -38-
    An employer's affirmative efforts to recruit minority
and female applicants does not constitute discrimination.
See Shuford v. Alabama State Bd. of Educ., 

, 1553-54 (M.D. Ala. 1995) ("affirmative recruitment
is a neutral measure") (interpreting Ensley Branch,
N.A.A.C.P. v. Seibels, 

, 1571 (11th Cir.
1994), and Peightal v. Metropolitan Dade County, 

, 1557-58 (11th Cir.




                           -39-
1994)).     An inclusive recruitment 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

only allows employers to obtain the best
possible employees, but it "is an excellent way to avoid
lawsuits." 

harm to white males is that they
must compete against a larger pool of qualified
applicants.   This, of course, "is not an appropriate
objection," 

not state a cognizable harm.8

    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

      8
       It appears that Duffy himself would agree with this assessment of the benefits
of inclusive recruitment. In his resume, Duffy contends that one of his "MAJOR
ACHIEVEMENTS" is that he "[e]ncouraged hiring of women and minorities for
Probation Officer positions." I J.A. at 28, Tab 5.

                                        -40-
determination of relevance is extremely deferential. See
Gillming v. Simmons Indus., 

, 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.").




                           -41-
    We do not believe that the district court abused its
discretion in disregarding this allegation.           The
employment responsibilities--and working relationship
with a judge--of a CUSPO differ dramatically from those
of a judicial law clerk. Compare Vacancy Announcement,
reprinted in I J.A. at 25, Tab 5 (detailing duties of
CUSPO), with Bishop v. Albertson's, Inc., 

, 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, ¶ 8, reprinted in I J.A. at 19-20, Tab
5; Vietor Aff. at 2-3, ¶ 5, reprinted in I J.A. at 99-
100, Tab 6; Longstaff Aff. at 3-4, ¶ 5, reprinted in II
J.A. at 103-04, Tab 7.       In addition, none of the
screening committee members have alleged that gender
played any role in McPhillips's selection, and two
affirmatively declared that it did not. See Zoss Aff.
(June 25, 1996) at 6-7, ¶¶ 15-16, reprinted in II J.A.
at 153-54, Tab 16 ("At the time the committee made its
recommendation, I did not believe that either David Duffy
or John Stites were as qualified for the position as Jane
McPhillips. . . . From my knowledge of the selection

                           -42-
process, the gender of Jane McPhillips and David Duffy
played no part in the selection process for the chief
probation officer for the Southern District of Iowa.");
Nickerson Aff. (June 28, 1996) at 2, ¶ 2, reprinted in II
J.A. at 156, Tab 17 ("To my personal knowledge, the
screening committee served as an objective appraiser of
the qualifications of the applicants 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 members of
the committee held no predisposition with respect to the
gender of the applicants who would ultimately be
submitted to the court.").




                           -43-
       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, 

(10th Cir. 1988) explained that:

    Summary judgment procedure is properly regarded
    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, 

, 819-20 n.35 (1982),
    the Supreme Court reiterated its admonition in
    Butz v. Economou, 

, 507 (1978), that
    "'insubstantial' suits against high public
    officials should not be allowed to proceed to
    trial. . . . Insubstantial lawsuits undermine
    the effectiveness of government 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 equal
    force to an action against a member of the
    judiciary.

(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).



                          -44-
                        III.

    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.




                         -45-
    "'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.,

, 240 (8th Cir. 1995) (quoting Kinkead v.
Southwestern Bell Tel. Co., 

, 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 v. Light, 

, 397 (8th Cir. 1985) (per
curiam). Rather,

      [u]nder Rule 56(a), a motion for summary
      judgment 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. However, . . . Rule 56(f) is not a
      shield that can be raised to block a motion for
      summary judgment without even the slightest
      showing   by   the   opposing  party  that   his
      opposition is meritorious. A party invoking its
      protections must do so in good faith by
      affirmatively    demonstrating  why  he   cannot
      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
      discovery or other means, to rebut the movant's
      showing 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 a
      motion for summary judgment is unjustified.

  (quotations,    citations,   footnote   and


                             -46-
alterations omitted) (emphasis in original); see also
Allen v. Bridgestone/Firestone, Inc., 

, 797-98
(8th Cir. 1996) (describing burden of party invoking Rule
56(f)).

    In his Rule 56(f) affidavit, Duffy's attorney
contends that "[u]ntil [Duffy] conducts discovery and
specifically has the opportunity to depose each of the
Defendants he is not in a position where he can
reasonably make a presentation that the Plaintiff's [sic]
explanations for their actions are a pretext for unlawful
discrimination."




                           -47-
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
discrimination, and it is well settled that "Rule 56(f)
does not condone a fishing expedition" where a plaintiff
merely hopes to uncover some possible evidence of a
constitutional violation. Gardner v. Howard, 

, 431 (8th Cir. 1997); see also 

("Appellant 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 defendants."). 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.




                           -48-
A true copy.


    Attest:


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




                      -49-