                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         March 16, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
JACQUELYNE JONES,

             Plaintiff - Appellant,

v.                                                          No. 14-3159
                                                (D.C. No. 2:12-CV-02681-DDC-TJJ)
JOHN MCHUGH, in his official capacity                        (D. Kan.)
as Secretary of the Department of the
Army,

             Defendant - Appellee.


                             ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Jacquelyne Jones, a former civilian employee of the Army, brought this pro se

employment discrimination action alleging that several work-related incidents at the

Army’s Fort Leavenworth Combined Arms Center (CAC) reflected multiple forms of

discrimination (race, religion, national origin, gender, disability, age, non-military

affiliation) and retaliation against her. The defendant, Secretary of the Army John

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
McHugh, filed a motion to dismiss or, in the alternative, for summary judgment. The

district court granted the motion on all claims. Ms. Jones appeals, but challenges the

district court’s order only as it relates to a claim involving the removal of some

supervisory duties from her job description as an operations specialist. On de novo

review of this ruling, see Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir. 2005)

(conducting de novo review of summary judgment, but only as to matters challenged

on appeal), we affirm for substantially the reasons stated by the district court.

                                 I.   BACKGROUND

      Ms. Jones’s pleading in this case references three EEOC complaints from her

time at CAC. The first of these complaints included her claim that supervisory

responsibilities were removed from her job description for statutorily proscribed

reasons. Although this appeal concerns only this one particular incident, it should be

seen in the context of surrounding events.1

      Ms. Jones came to work for CAC as an operations specialist in November

2006. Although she was not formally designated a supervisor, 15 percent of her

specified duties involved supervision over two other CAC employees. By March

2007, one of Ms. Jones’s supervisors, Major Suzanne Self, had heard concerns about


      1
         Because Ms. Jones failed to properly put in dispute the detailed facts set out
in Secretary McHugh’s motion, the district court accepted those facts—which it also
concluded were supported by record evidence—as true for purposes of summary
judgment, pursuant to D. Kan. R. 56.1. See R. at 1410. We follow the same course
in our factual summary here, although in our ensuing merits review we will address
particular evidentiary contentions Ms. Jones has advanced on appeal.


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Ms. Jones’s treatment of her subordinates, from the subordinates themselves and

others. Major Self and Captain Christian Nafziger (Ms. Jones’s immediate

supervisor) had discussions with Ms. Jones and the employees to address the

concerns constructively. No disciplinary action was taken.

      In the meantime, CAC resource management officer Stephen Spataro reported

on the results of an Army manpower survey that recommended CAC lose positions,

including two in Major Self’s section. While meeting with Mr. Spataro, Major Self

learned that an impending conversion to the National Security Personnel System was

expected to result in a number of supervisory positions being reclassified as

nonsupervisory. In that connection, Mr. Spataro told Major Self that the general rule

recognized by the Army was that a position should entail oversight of 10 to 15

subordinates before being classified as supervisory.

      Shortly thereafter, a human relations specialist informed Major Self and

Captain Nafziger Ms. Jones’s job duties should have been at least 25 percent

supervisory to constitute a proper supervisory position. The specialist further noted

that Ms. Jones’s position was not designated as supervisory.

      After verifying that removing her supervisory duties would not affect

Ms. Jones’s title, series, or pay grade, Major Self and Captain Nafziger revised the

position description and reassigned the supervisory duties directly to Captain

Nafziger, thereby reducing the levels of management oversight. Ms. Jones




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characterizes this action as a demotion and attributes it to statutorily proscribed

motives.

                                    II. ANALYSIS

      Without direct evidence of improper motive, assessment of the case on

summary judgment involved the circumstantial burden-shifting framework from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which broadly governs

discrimination and retaliation claims alike, Crowe v. ADT Sec. Servs., Inc., 649 F.3d

1189, 1195 (10th Cir. 2011). This framework sets out three steps: (1) “the plaintiff

must first establish a prima facie case of discrimination or retaliation,” (2) “[t]hen,

the defendant may come forward with a legitimate, non-discriminatory or

non-retaliatory rationale for the adverse employment action,” and (3) “[i]f the

defendant does so, the plaintiff must show that the defendant’s proffered rationale is

pretextual.” Id.

      The district court rejected Ms. Jones’s claim regarding the removal of her

supervisory duties at the latter two steps:

      [B]efore [Major] Self met with Jones to discuss the complaints made
      against her [by the two CAC employees she supervised], a CAC
      Resource management Officer told Self that the general rule in the
      Army is that an employee should have 10-15 subordinates before they
      are classified as a supervisor. Jones had only two subordinates, and her
      position description clearly stated that she was an “Operations
      Specialist” rather than a “Supervising Operations Specialist.” After
      verifying that revisions to Jones’s position description would not
      adversely affect Jones’s title, series, grade, or pay, [Captain] Nafziger
      and Self submitted changes to Jones’s position description.



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               Jones claims that she was discriminated against when supervisory
        duties were removed from her position description. Even if the Court
        assumes that the job change states a prima facie case of discrimination,
        defendant has articulated a legitimate, non-discriminatory reason for its
        action. . . . The burden then shifts back to Jones to establish that one of
        her protected class characteristics was a determinative factor in the
        employment decision or that defendant’s reason for its action was
        merely pretextual. Jones fails to submit any evidence establishing either
        option[.]

R. at 1414-15. We agree that the explanation given for revising Ms. Jones’s position

description was facially legitimate and non-discriminatory and, thus, “absent

evidence from which a reasonable fact-finder could conclude that [the] rationale was

pretextual, summary judgment for [defendant] was appropriate.” Crowe, 649 F.3d at

1196.

        In that regard, Ms. Jones notes that her predecessor in the operations specialist

position—who had been given the supervisory duties eventually removed after she

took over the job—was a white male. We have recognized an inference of

discrimination for purposes of a prima facie case may be shown by preferential

treatment to employees outside the plaintiff’s protected class. See Barlow v.

C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012). But to treat such prima facie

evidence of discrimination here as pretext evidence as well is patently circular. An

employer’s explanation for an allegedly discriminatory act is not undermined as

pretextual simply because the act thus explained had raised a circumstantial inference

of discrimination; that inference is precisely what is accounted for and defused by the

explanation. Rather, “[a] plaintiff demonstrates pretext by producing evidence of


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such weaknesses in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence.” Estate of

Bassatt v. Sch. Dist. No. 1 in the City & Cnty. of Denver, 775 F.3d 1233, 1239

(10th Cir. 2014) (emphasis added) (ellipses and internal quotation marks omitted).

As the above factual summary shows, the situation and information prompting

revision of the position description arose after Ms. Jones took over, so noting the

difference in the pre-revision description applicable to her predecessor does not point

up any weakness in the defendant’s legitimate, non-discriminatory explanation.

      Her briefing is not very clear, but it appears Ms. Jones argues that Major Self’s

verified declaration explaining the reasons for modifying the position description

should not count as sufficient evidence because corroboration for her statements was

not provided. But the law recognizes such a declaration as effective evidence in

summary judgment proceedings. See Fed. R. Civ. P. 56(c)(1)(A), (4); see also

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (noting that

although affidavits are hearsay in form, they properly govern on summary judgment

so long as their content is admissible).2 Ms. Jones also appears to argue that the


      2
        Ms. Jones does not challenge the content of Major Self’s declaration as being
inadmissible. We note that statements Major Self recites from human resource
personnel, for example about Army rules for supervisory positions, may be hearsay if
offered to prove the truth of those statements, i.e., to prove the actual existence and
nature of those rules. But that is not their relevance to the pretext analysis here,
which turns on what Major Self herself thought the rules required, not whether her
understanding was correct or incorrect. See Johnson v. Weld Cnty., 594 F.3d 1202,
1211 (10th Cir. 2010). In that regard, what she had been told by human resource
                                                                               (continued)
                                           -6-
district court improperly relied on other, unverified or otherwise inadmissible

materials. But Major Self’s affidavit fully supports the district court’s ruling, and the

district court did not cite to other, impermissible evidence in support of its decision.

      Ms. Jones also attacks Major Self’s affidavit as contradictory, appearing to

take exception to the affidavit’s reciting particular discussions with human resource

personnel without mentioning the manpower survey and impending loss of

supervisory positions. There is no contradiction here. The discussions with human

resource personnel concerned other issues—primarily the problems with Ms. Jones’s

position description leading to its revision.

      Ms. Jones’s briefing contains some additional assertions that are simply not

material to our analysis of the dispositive issue of pretext. These matters do not

warrant further discussion.

      Finally, we note Ms. Jones has filed a motion to supplement the record with an

appendix. In pro se appeals, the record forwarded by the district court clerk is used

instead of an appendix, pursuant to 10th Circuit Rules 11.2(A) and 30.1. Much of the

appendix Ms. Jones has submitted is duplicative of material already in the record.

And consideration of material outside of the record before the district court is

generally impermissible. United States v. Kennedy, 225 F.3d 1187, 1191-92


personnel was obviously probative of her relevant state of mind, regardless of
whether what she was told was actually correct. Such statements, offered for their
effect on the listener, are not hearsay. See United States v. Smalls, 605 F.3d 765, 785
n.18 (10th Cir. 2010).


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(10th Cir. 2000). Because the conclusory motion to supplement does not (1) identify

what material, if any, was before the district court but not forwarded as part of our

record for this appeal, (2) justify inclusion of any material that was not before the

district court, or (3) provide any particularized explanation as to why the materials

are necessary to the proper disposition of this appeal, we decline to grant the motion.

                                  III. CONCLUSION

      The judgment of the district court is affirmed. The motion to supplement the

record is denied.

                                                ENTERED FOR THE COURT,



                                                Scott M. Matheson, Jr.
                                                Circuit Judge




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