                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 19 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 MELINDA GALLEGOS,

          Plaintiff-Appellant,

 v.
                                                        No. 00-2259
                                                   (D.C. No. CIV-99-511)
 LOS ALAMOS COUNTY FIRE
                                                       (New Mexico)
 DEPARTMENT; COUNTY OF LOS
 ALAMOS, a New Mexico municipal
 entity,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Melinda Gallegos brought this civil rights action alleging claims of

discrimination under various state and federal statutes in connection with the


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
termination of her employment as a firefighter with the Los Alamos County Fire

Department (LACFD). The district court granted summary judgment for the

LACFD. Ms. Gallegos raises two issues on appeal, contending the court erred in

ruling against her on her claim of disparate impact gender discrimination and on

her claim that she was terminated in retaliation for exercising her First

Amendment rights. For the reasons set out below, we affirm.

      We review a grant of summary judgment de novo, viewing the evidence in

the light most favorable to the nonmoving party. See Clinger v. New Mexico

Highlands Univ. Bd. of Regents, 215 F.3d 1162, 1165 (10th Cir. 2000). Summary

judgment is appropriate only if the record shows there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c).

      Ms. Gallegos was a firefighter and a driver/engineer with the LACFD from

1987 to 1998. In 1995, the LACFD instituted a requirement that all firefighters

take a physical performance test known as the Criterion Task Test (CTT).

Although Ms. Gallegos took and passed the test in 1995, she injured her back

while doing so and believed the test was unsafe and invalid. The next year she

continued to express her views, refused to take the test and was suspended for two

days. Around this time, Ms. Gallegos developed a neurological condition that

caused her eye to twitch and limited her vision. As a result she was placed on


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medical leave. When the condition did not improve with treatment, she was

determined to be unfit for duty and her employment was terminated. Evidence in

the record tends to show that the stress and anxiety caused by her problems at

work contributed significantly to Ms. Gallegos’ neurological condition.

      Ms. Gallegos argued below that the CTT had a disparate impact on women

and was not job-related. In ruling against her, the district court held she failed to

establish a prima facie case. “A disparate impact claim involves employment

practices that are ‘fair in form, but discriminatory in operation.’” Bullington v.

United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir. 1999) (quoting Griggs v.

Duke Power Co., 401 U.S. 424, 431 (1971)).

      [A] plaintiff may establish a prima facie case of disparate impact
      discrimination by showing that a “specific identifiable employment
      practice or policy caused a significant disparate impact on a
      protected group.” This prima facie case, in many respects, is more
      rigorous than in a disparate treatment case because a plaintiff must
      not merely show circumstances raising an inference of discriminatory
      impact but must demonstrate the discriminatory impact at issue.

Id. (citation omitted).

      Disparate impact claims are typically proven through statistical evidence.

Id. Although the record reflects that Ms. Gallegos herself believed the test was

more difficult for smaller persons to perform, she offered no statistics or indeed

any evidence demonstrating that the CTT had a significant disparate impact on

women. In fact, the only time she took the test she passed it. Moreover, the


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record indicates that at the time discovery in this lawsuit took place, the LACFD

had two other women firefighters and was still requiring essentially the same test.

The record contains no evidence showing that a disproportionate number of

women were unable to become or remain firefighters with the LACFD or any fire

department as a result of their performance in this test. Because Ms. Gallegos

failed to offer evidence demonstrating the CTT had a disproportionate impact on

women, summary judgment was properly granted.

      Ms. Gallegos also asserts she was dismissed in retaliation for speaking out

against the test. The district court ruled that Ms. Gallegos’ speech was not on a

matter of public concern and was therefore not constitutionally protected. A First

Amendment retaliation claim is evaluated under the four-step test derived from

Pickering v. Board of Educ., 391 U.S. 563 (1968), and Connick v. Myers, 461

U.S. 138 (1983). See Clinger, 215 F.3d at 1165. First the court must determine

whether the employee’s statements can be “‘fairly characterized as constituting

speech on a matter of public concern.’” Gardetto v. Mason, 100 F.3d 803, 811

(10th Cir. 1996) (quoting Connick, 461 U.S. at 146). This is a legal question to

be resolved by the court. Id. “In deciding whether a particular statement involves

a matter of public concern, the fundamental inquiry is whether the plaintiff speaks

as an employee or as a citizen.” David v. City & County of Denver, 101 F.3d

1344,1355 (10th Cir. 1996). Speech relating to internal personnel disputes,


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personal grievances and working conditions ordinarily is not viewed as addressing

matters of public concern, while speech that pertains to a public entity’s discharge

of its governmental responsibilities or questions the integrity of government

officials is considered to address matters of public interest. See Clinger, 215 F.3d

at 1166; David, 101 F.3d at 1355; Gardetto, 100 F.3d at 812. “In making this

determination, we must consider the ‘content, form, and context of a given

statement, as revealed by the whole record.’” Gardetto, 100 F.3d at 812 (quoting

Connick, 461 U.S. at 147-48)).

      Our review of the record persuades us that Ms. Gallegos’ statements

concerning the CTT were made in her role as an employee rather than as a citizen.

Her complaints focused on her own problems with the test. While she did state

her belief that the test was unfair to her because she was a small person and her

belief that the test was invalid because it did not accurately reflect field

conditions, these statements viewed in context were allegations of a personal

grievance and criticism of internal management decisions rather than a charge that

the department was not properly performing its governmental responsibilities.

Indeed Ms. Gallegos chose not to present to her superiors the views of other male

firefighters who also had safety concerns and who ultimately requested an

reassessment of the CTT. In sum, we believe the speech here was motivated by

Ms. Gallegos’ personal problems with the CTT and the conditions of her own


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employment. Because her statements were made as an employee rather than as a

concerned citizen, they are not entitled to First Amendment protection. Summary

judgment was properly granted on this claim.

      The judgment is AFFIRMED.

                                     ENTERED FOR THE COURT


                                     Stephanie K. Seymour
                                     Chief Judge




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