The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
Duffy v. Wolle, 123 F.3d 1026 (8th Cir. August
Keywords: 42 U.S.C. Section 1983 (Bivens action,
Fifth Amendment, sex discrimination, failure to hire; failure to exhaust administrative
remedies; judicial immunity; individual immunity)
Introduction: David Duffy sued three federal district court judges
under the Fifth Amendment for sex discrimination arising out of a failure to hire. The
district court granted summary judgment on behalf of the judges. The Eighth Circuit
Facts: Duffy sought appointment to the position of Chief United States
Probation Officer (CUSPO) for the United States District Court for the Southern District
of Iowa. A female was selected instead. Duffy filed suit.
A "Bivens action" 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. Therefore, while this case summary is categorized
with 42 U.S.C. Section 1983, this is technically incorrect.
The judges are not entitled to have the case dismissed because Duffy
allegedly failed to pursue an administrative remedy for discrimination that was instituted
at the direction of the Judicial Conference. Only Congress has the power to decide that a
statutory or administrative scheme will foreclose a
Bivens action. There is no
evidence that Congress intended to delegate to the Judicial Conference the authority to
preempt a Bivens action in favor of administrative remedies.
The federal district court judges are not entitled to absolute judicial
immunity because they were performing an administrative function, not a judicial function.
The Court does find that the judges have available the defense of
qualified immunity and then analyzes the facts of this case under the
Douglas burden shifting analysis. The Court finds that the plaintiff failed to rebut
the proffered reasons for hiring the female. It is unclear whether the Eighth Circuit
affirms on the basis of qualified immunity or whether it affirms on the basis that these
defendants are entitled to summary judgment because the plaintiff failed to create a jury
question under the burden shifting analysis.
In any event, the Eighth Circuit holds that the following arguments
failed to create a jury question:
The female was not as qualified as Duffy. But rejection of a similarly
qualified candidate does not raise an inference of pretext.
The judges were looking for female applicants. But an employer's
affirmative action efforts do not constitute discrimination.
These male judges hired more female law clerks than males. But the
district court ruled that this evidence was not relevant. The Eighth Circuit holds that
there was no abuse of discretion.
Finally, Duffy argues that the district court abused its discretion in
not allowing him to conduct discovery first. But Duffy has made no supportable allegations
of discrimination and it is well settled that Rule 56(f) does not condone a fishing
Therefore, the Eighth Circuit affirms the district court's grant of
here to see