                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 21, 2011
                         UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   FOR THE TENTH CIRCUIT



 TAISSIYA OLEYNIKOVA,

          Plaintiff - Appellant,
                                                            No. 11-1017
 v.
                                               (D.C. No. 1:09-CV-01019-PAB-KMT)
                                                             (D. Colo.)
 REGGIE BICHA, GALINA KRIVORUK,
 RONALD OZGA,

          Defendants - Appellees.


                                   ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and EAGAN, **
Chief District Judge.


      This appeal arises from a 42 U.S.C. § 1983 action for damages brought by

Appellant Taissiya Oleynikova, an employee of the State of Colorado,

Department of Human Services (DHS) Office of Information Technology Services

(OITS), against Appellees Reggie Bicha, Executive Director of DHS, in his

official capacity, and Galina Krivoruk and Ronald Ozga, employees of DHS, in

their individual capacities. At issue is whether the district court properly granted


      *
        This order and judgment is not binding precedent, except under the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.
      **
        The Honorable Claire V. Eagan, Chief Judge of the United States District
Court for the Northern District of Oklahoma, sitting by designation.
summary judgment to Appellees on Plaintiff’s § 1983 complaint, which alleges

that Plaintiff was retaliated against in violation of the First Amendment of the

United States Constitution. We exercise our jurisdiction under 28 U.S.C. § 1291

and affirm.

I.    BACKGROUND

      Plaintiff has been employed by OITS since 1999 and her current position is

classified as an “Information Technology Professional - I.” Plaintiff is part of the

“Trails” group of OITS, which provides information technology support for

Colorado’s child welfare services. From approximately 2005 through 2007,

Plaintiff’s chain of supervision included her immediate supervisor Chuck Chow,

Krivoruk, now an Applications Director, Ozga, the Deputy Chief Information

Officer, and Ronald Huston, the Chief Information Officer. Plaintiff worked

closely with Chow and the two of them shared an office during much of the

relevant time period. Krivoruk and Plaintiff had known each other prior to

Plaintiff’s employment at DHS, and Krivoruk had been instrumental in helping

Plaintiff get the job. During 2005, a dispute arose within the Trails group

regarding an outside contractor, Meggin Bennabhaktula. Plaintiff’s statements in

relation to this dispute form the basis of this litigation.

      Bennabhaktula was hired as an outside contractor by OITS in 2005 to

design and implement software for the Trails team. Bennabhaktula’s work was

supervised by Krivoruk, but Bennabhaktula worked with Chow to a certain extent.

                                          -2-
Around March 2005, Bennabhaktula complained to Krivoruk that Chow and

Plaintiff were not cooperating with her and that Chow was “sabotaging” her. R.

Vol. 1 at 197. Krivoruk discussed the matter with Chow on April 4, 2005, at

which time Chow stated that Bennabhaktula was lying, had not been coming to

work, was not communicating with him regularly, and had missed deadlines. The

next day, Krivoruk held a meeting with Chow and Bennabhaktula. Krivoruk

stated that the meeting was “emotional on both sides” and it was decided that

Krivoruk would supervise the day-to-day activities of Bennabhaktula’s project.

Id. at 205. After this meeting, Chow went to Ozga and stated that he believed

Bennabhaktula should be fired. Chow then unilaterally blocked Bennabhaktula’s

access to the computer system because he believed she was a security risk.

Shortly thereafter, Krivoruk and Chow had at least two heated exchanges in which

Krivoruk told Chow to restore Bennabhaktula’s access. Chow stated that

Krivoruk screamed at him and threatened to suspend him. Krivoruk stated that

Chow raised his voice, stood uncomfortably close to her, and said that he would

“show [her] who’s the boss here.” Id. at 208.

      After these exchanges, Krivoruk telephoned Plaintiff to discuss the

situation. Krivoruk stated that she called Plaintiff because she was frightened and

wanted to be comforted. Krivoruk told Plaintiff about the dispute and said that

Chow had threatened her. Plaintiff stated that she was surprised and did not

believe Chow would threaten Krivoruk. Plaintiff further stated that she agreed

                                        -3-
with Chow that Bennabhaktula was not performing her duties and that it was a

waste of taxpayer money to continue to pay her. 1

      On April 25, 2005, Plaintiff emailed Krivoruk, stating that she felt

“insulted” by Bennabhaktula because Bennabhaktula had accused her of lying.

Id. at 268. Plaintiff wrote that “[i]t hurts my feelings badly . . . . It would be

nice of [Bennabhaktula] if she calls me or e-mails me saying that she was sorry

and did not want to hurt my feelings . . . . [as in original] Otherwise I will think

of [Bennabhaktula] as of a dishornest [sic] person with no dignity.” Id.

Sometime after this email, Plaintiff met with Krivoruk to discuss the situation.

Plaintiff’s recollection of the meeting is that she stated that she did not want to

get human resources involved, but just wanted an apology from Bennabhaktula.

      Over the next few months, Plaintiff began seeking a promotion within her

department. Plaintiff alleges that Krivoruk and Ozga repeatedly thwarted her

efforts to receive a promotion and/or refused to grant her a promotion, in

retaliation for Plaintiff’s statements regarding Bennabhaktula. In July 2005,

Plaintiff emailed Huston, stating that she was being “denied advancement.” Id. at

283. Plaintiff’s email does not explicitly allege retaliation nor does it mention

any concerns regarding use of taxpayer money. As a result of Plaintiff’s email, a


      1
        Krivoruk disputes that Plaintiff made these statements about
Bennabhaktula during this telephone call. Construing the evidence in the light
most favorable to the non-moving party, we will presume that Plaintiff made
these statements at that time.

                                          -4-
meeting took place in October 2005 among Plaintiff, Chow, Krivoruk, Ozga, and

Huston to discuss Plaintiff’s concerns. At this meeting, Plaintiff reiterated her

opinion that employing Bennabhaktula was a waste of taxpayer money. Plaintiff

also stated that she believed Krivoruk was retaliating against her because Plaintiff

had not taken Krivoruk’s side in the dispute over the contractor.

      In March 2006, Plaintiff filed a complaint of retaliation with the DHS

Employment Affairs Division Civil Rights Unit. The remedy requested by

Plaintiff in that complaint was “to be compensated for my financial and moral

losses.” R. Vol. 2 at 363. In April 2006, Plaintiff sent an email to Huston raising

concerns about her performance evaluation. In response, Huston held a meeting

with Plaintiff, Krivoruk, and Ozga. At this meeting, Plaintiff stated that she

believed the process by which comments were being collected for her evaluation

was improper and that this process was part of the retaliation against her for

taking Chow’s side in the dispute regarding Bennabhaktula. Plaintiff reiterated

her opinion that hiring Bennabhaktula was a waste of public money. Huston met

with Plaintiff individually in May 2006, at which time Plaintiff discussed her

concerns about her promotion, mentioned other perceived irregularities in

Krivoruk’s management of personnel, and again stated that she believed she was

being retaliated against for taking Chow’s side in the earlier dispute. In August

2006, Plaintiff sent an email to Huston asking for an update on the status of her

complaints regarding her promotion and the alleged retaliation by Krivoruk and

                                         -5-
Ozga.

        In January 2007, Plaintiff sent a lengthy email to Karen Beye, the newly

appointed Executive Director of DHS, summarizing her complaints from the

previous two years about retaliation and lack of promotion. In February 2007,

Plaintiff complained to her new supervisor, Van Head, and team leader, Bruce

Rensel, that she was being retaliated against for the prior statements regarding

Bennabhaktula. In March 2007, Plaintiff brought these same concerns to Richard

Gonzales, the Executive Director of the Department of Personnel and

Administration (DPA). Gonzales referred Plaintiff’s case to a state personnel

rules interpreter, who investigated. The investigation resulted in a finding that

Plaintiff had not been treated “unfairly or improperly.” Id. at 447. In May 2007,

Plaintiff emailed Gonzales asking to meet with him “to discuss not only my

personal issues but the issues that are of great concern to me as a taxpayer or just

a Colorado resident.” R. Vol. 3 at 1005. Plaintiff then met with Gonzales and

reiterated her position that employing Bennabhaktula was a waste of public funds

and again stated that she had been retaliated against for voicing that opinion.

        In January 2008, Plaintiff sent a two-page email to Gonzales and others, in

which Plaintiff again summarized her situation. Plaintiff wrote:

              I strongly believe that if I had not been caught in the
              middle of [Krivoruk’s] fight with my ex-supervisor
              Chuck Chow, I would have been promoted . . . .
              [Krivoruk] and I were friends before the fight with
              [Chow] took place. If it were not for the bad

                                          -6-
              atmosphere followed [sic] that fight, nobody would have
              ever questioned whether my performance or tasks were
              qualified for [a promotion].

R. Vol. 2 at 413. Following this meeting, a DPA consulting services supervisor

continued to investigate Plaintiff’s situation. In March 2008, the DPA supervisor

emailed Plaintiff stating that there did not appear to be any irregularity in her job

evaluations or lack of promotion and informed Plaintiff of formal grievance

procedures. On April 21, 2008, Plaintiff filed a charge of discrimination with the

United States Equal Employment Opportunity Commission, alleging age

discrimination and retaliation. Plaintiff filed a whistleblower complaint with the

state personnel board on July 2, 2008.

        The complaint in this case was filed on May 1, 2009, alleging that

Defendants discriminated against Plaintiff based on her age and that Defendants

retaliated against Plaintiff in violation of her First Amendment right to freedom of

speech. The district court granted summary judgment to Defendants on both

claims. Plaintiff now appeals the district court’s ruling on the retaliation claim

only.

II.     ANALYSIS

        We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court. Hackworth v. Progressive Cas. Ins. Co.,

468 F.3d 722, 725 (10th Cir. 2006), cert. denied, 550 U.S. 969 (2007). Summary

judgment is proper only if the movant shows “that there is no genuine dispute as

                                          -7-
to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed.R.Civ.P. 56(a). Furthermore, because this case involves the First

Amendment, we have “an obligation to make an independent examination of the

whole record in order to make sure that the judgment does not constitute a

forbidden intrusion on the field of free expression.” Citizens for Peace in Space

v. City of Colo. Springs, 477 F.3d 1212, 1219 (10th Cir. 2007).

      Plaintiff alleges that she was denied promotion in retaliation for speaking

out against her department’s employment of Bennabhaktula. “[T]he First

Amendment bars retaliation for protected speech.” Crawford-El v. Britton, 523

U.S. 574, 592 (1998). “[A] public employee does not relinquish First Amendment

rights to comment on matters of public interest by virtue of government

employment.” Connick v. Myers, 461 U.S. 138, 140 (1983). “Rather, the First

Amendment protects a public employee’s right, in certain circumstances, to speak

as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S.

410, 417 (2006). However, the interests of public employees in commenting on

matters of public concern must be balanced with the employer’s interests “in

promoting the efficiency of the public services it performs through its

employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also

Garcetti, 547 U.S. at 420 (“The Court’s decisions, then, have sought both to

promote the individual and societal interests that are served when employees

speak as citizens on matters of public concern and to respect the needs of

                                         -8-
government employers attempting to perform their important public functions.”).

      The Court in Pickering sought to achieve this balance through the adoption

of a four-part test to be implemented in public-employee, free-speech cases. See

Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001) (describing Pickering test).

In Garcetti, the Court expanded on the Pickering test by adding a fifth, threshold

inquiry that seeks to determine whether the speech at issue was made pursuant to

the public employee’s official duties. Garcetti, 547 U.S. at 421. Thus, after

Garcetti, “it is apparent that the ‘Pickering’ analysis of freedom of speech

retaliation claims is a five step inquiry which we now refer to as the

‘Garcetti/Pickering’ analysis.” Brammer–Hoelter, 492 F.3d at 1202; see also

Couch v. Bd. of Trs. of the Mem’l Hosp., 587 F.3d 1223, 1235 (10th Cir. 2009)

(“When analyzing a free speech claim based on retaliation by an employer, this

court applies the five-prong Garcetti/Pickering test.”).

      The Garcetti/Pickering test includes the following inquiries:

             (1) whether the speech was made pursuant to an
             employee’s official duties; (2) whether the speech was
             on a matter of public concern; (3) whether the
             government’s interests, as employer, in promoting the
             efficiency of the public service are sufficient to
             outweigh the plaintiff's free speech interests; (4)
             whether the protected speech was a motivating factor in
             the adverse employment action; and (5) whether the
             defendant would have reached the same employment
             decision in the absence of the protected conduct.

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The instant appeal


                                         -9-
concerns only the second prong of this test: whether Plaintiff’s speech was on a

matter of public concern. Speech that is of no public concern is not protected and

the inquiry ends.

      Whether Plaintiff’s statement was on a matter of public concern is a

question of law. Baca v. Sklar, 398 F.3d 1210, 1219 (10th Cir. 2005). “Matters

of public concern are those which can ‘be fairly considered as relating to any

matter of political, social, or other concern to the community.’” Gardetto v.

Mason, 100 F.3d 803, 812 (10th Cir. 1996) (quoting Connick, 461 U.S. at 146).

“Statements revealing official impropriety usually involve matters of public

concern. Conversely, speech that simply airs grievances of a purely personal

nature typically does not involve matters of public concern.” Brammer-Hoelter v.

Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007) (internal

citations and quotations omitted). “It is not sufficient that the topic of the speech

be of general interest to the public; in addition, what is actually said must meet

the public concern threshold.” Burns v. Bd. of Cnty. Comm’rs, 330 F.3d 1275,

1286 (10th Cir. 2003) (internal quotation omitted).

      “Whether an employee’s speech addresses a matter of public concern must

be determined by the content, form, and context of a given statement, as revealed

by the whole record.” Connick, 461 U.S. at 147-48. In addition, we may consider

the “motive of the speaker and whether the speech is calculated to disclose

misconduct or merely deals with personal disputes and grievances unrelated to the

                                         -10-
public’s interest.” Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir.

2000).

         Applying this standard, the district court held that Plaintiff’s speech

concerning Bennabhaktula was not a matter of public concern because the

“context reveals plaintiff’s motive in making it was not that of a concerned

citizen,” but instead that Plaintiff sought to “redress her personal grievance and

defend her supervisor.” R. Vol. 4 at 12-13. Plaintiff argues that the district court

erred in not finding that her speech inherently involved a matter of public concern

because it dealt with the alleged waste of public funds. Plaintiff also argues that

the district court erred by considering all of her speech as a unitary whole and by

improperly focusing on plaintiff’s motive in making the speech.

         Plaintiff, citing Brammer-Hoelter, argues that the district court erred in

considering all of Plaintiff’s speech as a whole rather than separately considering

each incidence of speech. However, Plaintiff appears to have misunderstood our

holding in Brammer-Hoelter. In Brammer-Hoelter, we stated that “in some cases,

a pattern of speech may be considered as a unitary whole for determining whether

it addresses matters of public concern. . . . [I]t is appropriate to conduct such a

unitary analysis when . . . the speech involves multiple instances but only one

subject.” Brammer-Hoelter, 492 F.3d at 1205 (internal quotations omitted). In

the present case, all of Plaintiff’s speech concerned her opinion that

Bennabhaktula’s employment was a waste of money and the alleged retaliation

                                           -11-
against Plaintiff resulting from her expression of that opinion. Thus, Plaintiff

spoke on multiple occasions, but only on one subject. Her speech should

therefore be considered as a unitary whole. Id.

      Plaintiff next argues that the district court erred by focusing on Plaintiff’s

motive rather than on the content of Plaintiff’s speech. Plaintiff states that “the

content of the speech is the most important factor to be considered,” and she cites

cases from other jurisdictions in support. However, this court’s precedent does

not support such a categorical proposition. See Schalk v. Gallemore, 906 F.2d

491, 496 (10th Cir. 1990) (considering speaker’s motive as well as content of

speech); Wulf v. City of Wichita, 883 F.2d 842, 857 (10th Cir. 1989) (same). In

considering the content, form, and context of a plaintiff’s speech, we have

repeatedly held that a court may also consider the speaker’s motive in making the

speech. See, e.g., Brammer-Hoelter, 492 F.3d at 1205; Lighton, 209 F.3d at 1224.

However, we have never made the pronouncement that content could trump

motive or vice versa. Instead, the court must examine the entire record as a

whole. See Connick, 461 U.S. at 147-48.

      It can be difficult to draw “the thin line between a public employee’s

speech which touches on matters of public concern, and speech from the same

employee which only deals with personal employment matters . . . .” Schalk v.

Gallemore, 906 F.2d 491, 495 (10th Cir. 1990). As noted above, speech

disclosing “any evidence of corruption, impropriety, or other malfeasance” on the

                                         -12-
part of public officials will generally be of public concern. Conaway v. Smith,

853 F.2d 789, 796 (10th Cir. 1988). However, as the Supreme Court has recently

reiterated, “[i]t is not a right to transform everyday employment disputes into

matters for constitutional litigation in the federal courts.” Borough of Duryea v.

Guarnieri, -- U.S. --, 131 S. Ct. 2488, 180 L. Ed. 2d 408 (2011).

      When an employee’s speech raises concerns over the performance of

another employee, “in one sense the public may always be interested in how

government officers are performing their duties. But, as the Connick and

Pickering test has evolved, that will not always suffice to show a matter of public

concern.” Borough of Duryea, 131 S. Ct. at 2501. We have repeatedly held that

speech relating to internal personnel disputes is not of public concern, even where

that speech may tangentially concern expenditure of public funds. See, e.g.,

Brammer-Hoelter, 492 F.3d at 1206 (holding that plaintiffs’ “dissatisfaction with

their supervisors’ performance [were] not matters of public concern”); Lighton,

209 F.3d at 1225 (holding that speech regarding alleged misuse of public

equipment was not matter of public concern where plaintiff made statements “for

his own personal reasons”); see also Gardetto, 100 F.3d at 813-14 (“the First

Amendment protects neither public employee criticisms of internal management

decisions, nor public employee complaints about the structure of purely internal

administrative bodies”) (internal quotations and citations omitted).

      Having considered the content, context, and form of Plaintiff’s speech, as

                                        -13-
well as having considered her motives, we do not find that Plaintiff’s speech is

protected by the First Amendment. Plaintiff’s initial statements regarding

Bennabhaktula were made in the context of an interpersonal dispute between her

immediate supervisor (Chow) and his supervisor (Krivoruk), both of whom were

friendly with Plaintiff. Plaintiff has repeatedly characterized her situation as one

where she was retaliated against for not “siding with” Krivoruk in this dispute.

Plaintiff’s statements have also demonstrated a personal dislike of Bennabhaktula

and a desire for Bennabhaktula to apologize to Plaintiff for perceived insults.

These circumstances strongly suggest that Plaintiff’s continued statements

regarding Bennabhaktula were made within the context of an intra-departmental

personnel dispute and were motivated by a personal grievance. Such statements

do not rise to the level of public concern. See Connick, 461 U.S. at 148 (holding

that speech made as extension of ongoing internal dispute were not matter of

public concern).

      Plaintiff’s attempt to characterize her statements as regarding a matter of

public concern by invoking the “waste of public funds” is unsuccessful.

Plaintiff’s statements regarding the narrow issue of one contractor’s job

performance do not “sufficiently inform the issue as to be helpful to the public in

evaluating the conduct of government.” Wilson v. City of Littleton, 732 F.2d 765,

768 (10th Cir. 1984). Unlike many cases where courts find speech to be on

matters of public concern, the conduct complained of by Plaintiff did not reveal a

                                        -14-
potential “breach of public trust on the part of a public officer.” Conaway, 853

F.2d at 796 (citing Connick, 461 U.S. at 148). Nor did Plaintiff’s allegations have

any relation to public health or safety, which would be of interest to the public.

See Considine v. Adams Cnty., 910 F.2d 695, 700 (10th Cir. 1990) (holding that

statements alleging “numerous statutory and regulatory public health and safety

violations” at public work sites were on matters of public concern); Conaway, 853

F.2d at 796 (holding that speech concerning “substandard electrical work, which,

[plaintiff] felt, posed danger to public life, health, and safety” was on matters of

public concern); Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir. 1986) (holding

that speech concerning sexual harassment of students and teachers at a public

school were on matters of public concern). Finally, Plaintiff’s repetition of her

allegations over the years and her repeated explanation of the alleged retaliation

were in the context of addressing her own career advancement and were not on a

matter of public concern.

      To characterize Plaintiff’s speech in this case as a matter of public concern

would allow any public employee’s grievance with another public employee to

rise to the level of a public concern whenever the phrase “waste of public

resources” or similar language is contained in the speech. Because Plaintiff’s

statements were not on a matter of public concern, Defendants are entitled to

summary judgment.




                                         -15-
Therefore, we AFFIRM the judgment of the district court.



                              Entered for the Court



                              Claire V. Eagan
                              District Judge




                               -16-
