UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JACQUELYNE JONES, 

 Plaintiff - Appellant, 

v. 

JOHN MCHUGH, in his official capacity 

as Secretary of the Department of the 

Army, 

 Defendant - Appellee. 

No. 14-3159 

(D.C. No. 2:12-CV-02681-DDC-TJJ) 

(D. Kan.)

 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 16, 2015

Elisabeth A. Shumaker 

Clerk of Court

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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) 

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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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