* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially 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 o ral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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 ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 19 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MELINDA GALLEGOS, Plaintiff-Appellant,

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



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , and BRISCOE , Circuit Judges.
Melinda Gallegos brought this civil rights action a lleging claims of discrimination under various state and federal statutes in connection with the-2-

termination of her employment as a firefighter with the Los Alamos County Fire Department (LACFD). The district court granted sum mary judgment for the LACFD. Ms. Gallegos raises two issues on appeal, c ontending the court erred in ruling against her on her claim of disparate impactgender discrimination and on her claim that she was terminated in retaliation fo r exercising her First Amendment rights. For the reasons set out below, w e affirm. We review a grant of summary judgment de novo, view ing 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 th ere is no genuine issue of material fact and the moving party is entitled to j udgment as a matter of law. See Fed. R. Civ. P. 56(c). Ms. Gallegos was a firefighter and a driver/enginee r with the LACFD from 1987 to 1998. In 1995, the LACFD instituted a requ irement that all firefighters take a physical performance test known as the Crite rion Task Test (CTT). Although Ms. Gallegos took and passed the test in 1 995, she injured her back while doing so and believed the test was unsafe andinvalid. 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 n eurological condition that caused her eye to twitch and limited her vision. A s a result she was placed on-3-

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’ neu rological condition. Ms. Gallegos argued below that the CTT had a dispar ate impact on women and was not job-related. In ruling against her, th e 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 d isparate impact discrimination by showing that a “specific identifi able employment practice or policy caused a significant disparate i mpact on a protected group.” This prima facie case, in many r espects, 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 impa ct at issue. Id. (citation omitted). Disparate impact claims are typically proven throug h statistical evidence. Id. Although the record reflects that Ms. Gallegos hers elf 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 signi ficant disparate impact on women. In fact, the only time she took the test sh e passed it. Moreover, the-4-

record indicates that at the time discovery in this lawsuit took place, the LACFD had two other women firefighters and was still requ iring essentially the same test. The record contains no evidence showing that a disp roportionate 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 reta liation 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 cons titutionally 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 c haracterized 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 invol ves 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 int ernal personnel disputes,-5-

personal grievances and working conditions ordinari ly is not viewed as addressing matters of public concern, while speech that pertai ns to a public entity’s discharge of its governmental responsibilities or questions the integrity of government officials is considered to address matters of publi c 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. Gall egos’ statements concerning the CTT were made in her role as an empl oyee 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 notaccurately reflect field conditions, these statements viewed in context were allegations of a personal grievance and criticism of internal management deci sions rather than a charge that the department was not properly performing its gove rnmental responsibilities. Indeed Ms. Gallegos chose not to present to her sup eriors the views of other male firefighters who also had safety concerns and who u ltimately requested an reassessment of the CTT. In sum, we believe the sp eech here was motivated by Ms. Gallegos’ personal problems with the CTT and th e conditions of her own-6-

employment. Because her statements were made as anemployee rather than as a concerned citizen, they are not entitled to First A mendment protection. Summary judgment was properly granted on this claim. The judgment is AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge