Jones v. McHugh , 604 F. App'x 669 ( 2015 )

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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)
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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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