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

### April 4, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOYCE A. GILCHRIST, Plaintiff-Appellant,

v. BILL CITTY, individually and in his official capacity as Assistant Police Chief; KEN McDONALD, individually and in his official capacity as Major with the Oklahoma City Police Department; JOHNNY KUHLMAN, individually and in his official capacity as Major with the Oklahoma City Police Department; RICHARD DAWES, individually and in his official capacity as Chemist Supervisor with the Oklahoma City Police Department; MATTHEW SCOTT, individually and in his official capacity as Chemist with the Oklahoma City Police Department; CITY OF OKLAHOMA CITY, a municipal corporation; M. T. BERRY, individually and in his official capacity as Chief of Police; ROBERT A. JONES, individually and in his official capacity as Deputy Chief of Police; GAROLD SPENCER, individually and in his official capacity as Major with the Oklahoma City Police Department; BYRON BOSHELL, individually and in his official capacity as Captain with the Oklahoma City Police Department; No. 04-6402 (Western District of Oklahoma) (D.C. No. 02-CV-538-R)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable M. Christina Armijo, United States Di strict Court, District of New Mexico, sitting by designation.

1 Gilchrist’s complaint named ten current or former p olice department officers and employees as defendants: Chief M.T. Be rry, Deputy Chief Robert A. Jones, Assistant Chief Bill Citty, Major Ken McDona ld, Major Johnny Kuhlman, Chemist Supervisor Richard Dawes, Chemist Matthew S cott, Major Garold Spencer, Captain Byron Boshell, and Chemist Laura S chile. Additionally, Gilchrist named as a defendant Oklahoma City’s CityManager James D. Couch. -2- LAURA SCHILE, individually and in her official capacity as Forensic Chemist with the Oklahoma City Police Department; JAMES D. COUCH, individually, Defendants-Appellees.

ORDER AND JUDGMENT *

KELLY , MURPHY , Circuit Judges, and ARMIJO , District Judge **

I. INTRODUCTION Former Oklahoma City Police Department forensic che mist Joyce A. Gilchrist sued the City of Oklahoma City and certai n of its employees 1 under 42 U.S.C. § 1983. She alleged Defendants terminated h er employment in retaliation for engaging in speech protected by the First Amend ment, conspired to deprive-3-

her of constitutionally protected rights, defamed h er, denied her procedural and substantive due process, and deprived her of a libe rty interest in her good name and reputation. The United States District Court f or the Western District of Oklahoma granted summary judgment to Defendants. G ilchrist raises a number of arguments on appeal. We exercise jurisdiction purs uant to 28 U.S.C. § 1291 and
affirm the district court’s grant of summary judgment.
II. BACKGROUND Gilchrist began working in the forensic laboratory of the Oklahoma City Police Department (“OCPD”) in 1980. Gilchrist perf ormed forensic tests in OCPD’s investigations of violent crimes and testifi ed in court regarding her analyses. Gilchrist’s superiors and officials fromthe Oklahoma County District Attorney’s office gave her commendations and letter s of appreciation for her work. In 1990, Gilchrist was promoted to forensic chemist supervisor. As supervisor, Gilchrist was responsible for the admin istration and operation of OCPD’s serology laboratory. She was also responsib le for establishing a new DNA laboratory for OCPD, a project that began in th e early 1990s. In June of 1998, a female contractor told Gilchristthat OCPD Major Garold Spencer had harassed her. At the time, Spencer was Gilchrist’s supervisor. Gilchrist reported the harassment incident to M.T. Berry, then Chief of Police for Oklahoma City, who ordered an investigation. The c ontractor told an investigator-4-

“nothing happened” with Spencer, and she did not wa nt to pursue the matter. The investigation was closed, and the police depart ment took no disciplinary action against Spencer. In May of 1999, Captain Byron Boshell took over as Gilchrist’s immediate supervisor. Although Gilchrist had received favorable reviews from her superiors in the past, Boshell claimed the serology lab was “ in disarray” when he arrived. While Gilchrist indicated the DNA laboratory would be completed by the fall of 1999, Boshell expressed concern about Gilchrist’s p rogress in setting up the lab. In response to Boshell’s concerns about the DNA lab oratory, the police department hired an outside consultant, Dr. Roger K ahn, to evaluate the project. Kahn evaluated the DNA laboratory in August of 1999 . While Kahn praised some of Gilchrist’s efforts, he concluded m uch more work was required before the laboratory would be operational. Kahn i ndicated Gilchrist needed to do more work on laboratory manuals. He also statedGilchrist did not maintain adequate contact with a technical leader and failed to properly document her studies. He told OCPD officials that, unless something changed, Gilchrist’s efforts to implement the DNA project would fail. K ahn recommended the department hire an experienced DNA analyst. In res ponse to Kahn’s evaluation, Gilchrist was placed on special assignment and instructed to devote all of her time to completion of the DNA laboratory.-5-

Shortly after Gilchrist was placed on special assig nment, the District Court for the Western District of Oklahoma published Mitchell v. Ward, 150 F. Supp. 2d 1194 (W.D. Okla. 1999), aff’d in part and rev’d in part sub nom. Mitchell v

. Gibson , 262 F.3d 1036 (10th Cir. 2001). The Mitchellopinion criticized Gilchrist’s testimony in the 1992 rape and murder t rial of Alfred Brian Mitchell. See e.g. id . at 1226–27; 1229. It characterized some portion s of Gilchrist’s testimony as “without question, untrue” and conclud ed some of her courtroom statements were, “at least, misleading.” Id . at 1226, 1227 n.48. The opinion also noted the Oklahoma Court of Criminal Appeals freque ntly criticized Gilchrist’s testimony, scientific reports, and forensic work. Id . at 1229 n.52 (citing four cases in which Gilchrist was chastised by the court ). In light of the court’s condemnation of Gilchrist i n Mitchell , OCPD Chief M.T. Berry ordered Boshell to conduct an investigat ion of Gilchrist’s case work and courtroom testimony. A short time later, the department hired Laura Schile, an experienced DNA analyst. In January of 2000, Bo shell placed Schile in charge of the DNA project. Boshell instructed Gilchrist t o continue working in the DNA laboratory, but as Schile’s subordinate. The working relationship between Gilchrist and Schi le deteriorated. In March, Boshell gave Schile complete control of the DNA project and removed Gilchrist to a purely administrative position. On April 3, 2000, Gilchrist filed an-6-

internal grievance against Boshell and OCPD Deputy Chief Robert Jones, complaining that Boshell had unfairly removed her f rom the DNA laboratory project. Police Chief Berry denied Gilchrist’s gri evance on May 2, 2000. Later in 2000, problems came to light regarding evi dence handling, packaging, and storage in the serology laboratory. Boshell discovered evidence was missing in at least four cases. The laboratorywas also missing serology case files for the years 1980, 1981, and 1990. In July of 2000, Boshell found a box containing exposed and unsealed evidence for a deat h-penalty case that was being reviewed by the Attorney General’s Office. Other e vidence boxes had been wet, or were rotting, inappropriately sealed, or inappro priately marked. In October of 2000, a serology laboratory freezer malfunctioned a nd evidence was contaminated. The contamination was exacerbated be cause evidence was not stored and packaged properly. On October 13, 2000, the serology laboratory was closed to allow analysts to begin correcting eviden ce storage and packaging problems. On January 16, 2001, Boshell submitted to his supervisors a report documenting his investigation of Gilchrist’s work i n the serology and DNA laboratories. Boshell’s report detailed the eviden ce handling and storage problems which arose during Gilchrist’s supervisionof the serology laboratory,2 Boshell’s report noted the laboratory had no operat ing, procedure, or

safety manuals. The report indicated laboratory ch emists were improperly disposing of blood by pouring it down the sink into the city’s drainage system. It concluded formal peer review of laboratory caseworkshould have been common, but was not conducted. Boshell also discovered lab oratory chemists were not conducting required proficiency tests.

3 The Boshell report alleged Gilchrist purchased equi pment to support a type of DNA analysis the laboratory was never designed t o use, and purchased other equipment that was unnecessary or inappropriate forthe DNA lab. In March of 2000, chemist Schile determined the laboratory cont ained approximately $50,000 worth of unuseable equipment. The Boshell report a lso noted Gilchrist purchased fifty-four pipetters for the DNA laboratory and all eged such a quantity was vastly in excess of the lab’s needs. It further contended Gilchrist allowed an instrument maintenance contract to expire and allowed various equipment certifications to lapse. -7- and described a variety of other concerns with Gilc hrist’s management practices. 2
It concluded Gilchrist wasted tens of thousands of dollars on excessive, premature, or inappropriate equipment purchases forthe DNA laboratory. 3 Importantly, Boshell’s report also alleged Gilchris t performed inaccurate forensic analyses, interpreted evidence incorrectly, and off ered misleading testimony in criminal cases. The Boshell report indicated Gilchrist erred in heranalysis of hair samples in the murder case of Robert Miller. It stated Gil christ had incorrectly determined the hair samples were consistent with Miller and ha d wrongly ruled out another suspect as a possible hair donor. The report noted Gilchrist’s work on hair samples was being challenged in another case as wel l. Boshell’s report cited instances when Gilchrist failed to disclose evidenc e and may have deliberately-8-

hidden test results. It found Gilchrist’s forensic work had been questioned in an assortment of publications, and determined the Asso ciation of Crime Scene Reconstruction had expelled Gilchrist for ethical v iolations. In addition to the judicial opinions critical of Gilchrist’s work cite d in the Mitchellopinion, Boshell reported another case was overturned in part becaus e of Gilchrist’s improper testimony. After Boshell submitted his report, more problems w ith Gilchrist’s forensic work were exposed. On February 2, 2001, members of the DNA Project of the Oklahoma Indigent Defense System requested that che mist Schile examine evidence in the 1986 rape case of Jeffery Todd Pier ce to determine whether it would be suitable for DNA testing. Schile complied , and examined certain slides about which Gilchrist had testified in the Pierce t rial. At Pierce’s trial, Gilchrist asserted the slides contained sperm and semen. Whe n Schile reexamined the slides, however, she could find sperm on only one o f the slides. At Schile’s request, three other OCPD forensic analysts reviewe d the slides. Like Schile, they found evidence of sperm on only one of the sli des. The OCPD submitted six of the Pierce slides to the Oklahoma State Bureau o f Investigation (“OSBI”). OSBI reviewed the evidence and determined sperm was not present on any of the submitted slides.-9-

After looking at Gilchrist’s analysis of the Pierce evidence, Schile reviewed other cases upon which Gilchrist had worked. In a memorandum to Boshell, Schile reported problems with Gilchrist’s packaging and storage of evidence and noted Gilchrist’s documentation was “questionable.” Schile recommended a more thorough investigation of the Pierce case and a rev iew of other cases. Police Chief Berry requested the assistance of the Federal Bureau of Investigation (“FBI”). Special Agent Douglas Deedrick of the FBI reviewed eight of Gilchrist’s cases and was critical of the quality of her forens ic analyses. Deedrick noted Gilchrist’s laboratory notes frequently were incomp lete or inadequate and asserted Gilchrist erred in identifying or interpreting samp les in each of the five cases where she had used glass microscope slides to make hair or fiber comparisons. Deedrick recommended a review of all instances when Gilchrist had connected hair or fiber samples with a suspect or victim, whe n such evidence was significant to the outcome of the trial. Deedrick’s report als o criticized the credibility of Gilchrist’s testimony in criminal cases, stating th at, in several instances, Gilchrist “made statements that went beyond the acceptable li mits of forensic science.” Scientists from the Serological Research Institute (“SERI”) reviewed Gilchrist’s work in the Jeffery Todd Pierce case. In 1989, Gilchrist’s serological analysis and courtroom testimony had helped prosecutors convict Pierce of rape,4 Gilchrist asserts she did not perform DNA testing at the time she

conducted her serological analysis of the evidence in the Pierce case because DNA technology did not exist at that time. -10- sodomy, burglary, and assault with a dangerous weap on. More than a dozen years later, the SERI scientists used DNA analysis 4 to conclude the donor of the sperm cells found on the rape victim’s clothing was not P ierce. As a result of SERI’s review, Pierce was found factually innocent of comm itting the crimes for which he was charged and convicted. Pierce was freed fro m incarceration and his sentence and conviction were vacated. The SERI report was issued on May 7, 2001. That sa me day, Oklahoma City officials placed Gilchrist on leave and gave h er written notice of a pretermination hearing. The notice advised Gilchri st that she was alleged to have mismanaged the serology and DNA laboratories, that her credibility was challenged in courts and in forensic journals, and that her casework analysis was flawed. Gilchrist also received a memorandum which outlined the results of Boshell’s investigation, a copy of the FBI’s reviewof her casework, and a report of Boshell’s inquiry into the complaint Gilchrist h ad lodged against Major Spencer in 1998. On July 13, 2001, SERI submitted to Boshell an audi t of the OCPD forensic laboratory. SERI scientists reviewed Gilchrist’s w ork and testimony in the Jeffery Todd Pierce and Curtis McCarty cases. Afte r reviewing the evidence and-11-

Gilchrist’s testimony in the Pierce case, the SERI scientists concluded Gilchrist gave erroneous testimony and “show[ed] a total disr egard for the results of her analysis and a prejudice against the defendant.” I n the McCarty case, the SERI scientists determined Gilchrist’s courtroom stateme nts “display[ed] a terrible prejudice to the defendant,” and portions of her te stimony were “hopelessly confusing and self-contradicting.” Gilchrist’s pretermination hearing began on August 21, 2001, and lasted eight days. The hearing was conducted before a dep artmental review board consisting of Bill Citty, Richard Dawes, Matthew Sc ott, Ken McDonald, and Johnny Kuhlman. When Gilchrist was notified of the proposed board, she submitted a written response indicating she did notobject to the composition of the board. After the hearing concluded, the review board sustained allegations that Gilchrist made inappropriate expenditures whenshe supervised the forensic laboratory, was dishonest in communicating with hersupervisors, mishandled evidence and case files, and failed to establish an d follow proper procedures. The board further sustained allegations that Gilchrist’ s courtroom testimony resulted in criticism which compromised OCPD’s integrity andthat her casework analysis was flawed and improperly documented. The board re commended termination of Gilchrist’s employment. Police Chief Berry terminated Gilchrist on September 25, 2001.5 The district court granted the motions for summary judgment of defendants

Berry, Couch, Citty, McDonald, Kuhlman, Dawes, Scott, and the City of Oklahoma City in an order dated June 7, 2004. The district court granted the motions for summary judgment of defendants Jones (n ow deceased), Spencer, Boshell, and Schile in an order dated December 3, 2 004. -12- In October 2001, Gilchrist’s attorney filed an int ernal grievance with the police department challenging her termination. The grievance review board conducted a hearing, at which Gilchrist was represe nted by counsel. At the conclusion of the hearing proceedings, the grievanc e board recommended to the City Manager, James Couch, that Gilchrist’s grievan ce be denied. Couch upheld Gilchrist’s termination. In April 2002, Gilchrist filed a complaint in distr ict court, asserting seven causes of action. She alleged the City, police dep artment personnel, members of the pretermination hearing board, and other officia ls (1) violated her First Amendment rights by retaliating against her for rep orting the alleged incident of sexual harassment involving Major Spencer in 1998; (2) violated her First Amendment rights by retaliating against her for tes timony she gave in criminal cases; (3) conspired to violate her rights; (4) def amed her; (5) deprived her of substantive due process; (6) deprived her of proced ural due process; and (7) deprived her of her liberty interest in her good na me and reputation. The district court granted motions for summary judgment in favorof Defendants. 5 Gilchrist appeals the district court’s decisions.-13-

III. ANALYSIS
A. Standard of Review This court reviews de novo a district court’s grant of summary judgment. Salehpoor v. Shahinpoor , 358 F.3d 782, 785 (10th Cir. 2004). Summary judg ment is appropriate when no genuine issue of material fa ct is in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fac t exists, we must construe the facts and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Curtis v. Okla. City Pub. Sch. Bd. of Educ. , 147 F.3d 1200, 1214 (10th Cir. 1998). “[T]he mere existence of a scintilla of evidence in support of the nonmovant’s position is insufficient to create a ge nuine issue of material fact.” Johnson v. Lindon City Corp. , 405 F.3d 1065, 1068 (10th Cir. 2005) (quotations omitted). “Thus, for a genuine issue of material f act to exist, the nonmovant must present facts upon which a reasonable jury could fi nd in favor of the nonmovant.” Id . Unsupported conclusory allegations do not create an issue of fact. See Matthiesen v. Banc One Mortgage Corp. , 173 F.3d 1242, 1247 (10th Cir. 1999). In summary judgment cases raising First Amendment i ssues, an appellate court must independently examine the whole record t o ensure “the judgment does not constitute a forbidden intrusion on the field o f free expression.” Melton v.-14-

City of Okla. City , 879 F.2d 706, 713 (10th Cir. 1989) (quotations om itted). The court must focus its examination on the record; fac ial assertions in a complaint are insufficient to overcome summary judgment when the record as a whole reveals no genuine issue of material fact and the m oving party is entitled to judgment as a matter of law. Salehpoor , 358 F.3d at 786. B. Retaliation for Reporting Sexual Harassment Gilchrist’s complaint contends certain of the defen dants violated her First Amendment rights by terminating her employment in r etaliation for her 1998 report of an alleged incident of sexual harassment involving Major Spencer and a third party. The district court granted summary ju dgment to the defendants. Gilchrist argues the court erred when, at the summa ry judgment stage, it determined she did not present evidence sufficient to support her retaliation claim. Gilchrist asserts that when the district co urt reviewed the sufficiency of the evidence, it improperly determined a question o f fact that should have been reserved for the jury. “A public employer is liable for retaliatory discha rge when it terminates an employee because [she] engaged in protected speech. ” Schrier v. Univ. of Colo. , 427 F.3d 1253, 1262 (10th Cir. 2005). This court u ses a four-prong test to determine whether a government employer’s actions i mpermissibly infringe upon the free speech rights of its employee. Id

.-15-

First, we must determine whether the employee’s spe ech involves a matter of public concern. If so, we then balance t he employee’s interest in commenting upon matters of public conce rn against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employe es. Third, if the balance tips in favor of the employee, the employee then must show that the speech was a substantial factor or a motiv ating factor in the detrimental employment decision. Fourth, if the pl aintiff establishes that speech was such a factor, the employer may dem onstrate that it would have taken the same action against the employ ee even in the absence of the protected speech. Id . “The first two factors present questions of law. The latter two factors address causation and present questions of fact subject to the preponderance of the evidence standard.” Maestas v. Segura , 416 F.3d 1182, 1187–88 (10th Cir. 2005) Assuming Gilchrist has presented evidence sufficient to demonstrate her 1998 report of sexual harassment satisfies the firs t two prongs of the test, we must decide whether she has also shown that the inc ident was a substantial or motivating factor in her termination. “Under the t hird factor [of the four-part test], the employee has the initial burden of estab lishing causation—that is, to show the exercise of constitutionally protected spe ech was a substantial motivating factor in the employer’s decision to adv ersely alter the employee’s conditions of employment.” Id . at 1188. “To withstand summary judgment at step three, therefore, an employee must produce evi dence linking the employer’s action to the employee’s speech.” Id .; see also Butler v. City of Prairie Village,
Kan. , 172 F.3d 736, 746–47 (10th Cir. 1999) (affirming district court’s grant of-16-

summary judgment to defendants when plaintiff offer ed only “doubtful and inconclusive evidence” to support his retaliation c laim). Contrary to Gilchrist’s assertion, the district cou rt in this case did not improperly decide an issue of fact. Instead, it pr operly conducted a review of the evidence to determine whether there was anysupport for Gilchrist’s retaliation claim. After conducting its review, the district c ourt concluded Gilchrist failed to offer any evidence to suggest her termination was u ndertaken in retaliation for her 1998 sexual harassment complaint. After examining the record in this case, we agree w ith the district court’s conclusion. As the district court correctly notes, more than three years lapsed between Gilchrist’s 1998 sexual harassment complaint and her 2001 termination. Such a significant temporal gap does not warrant an inference of retaliatory motive. See Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir. 1997) (upholding district court’s decision that gap of th ree months between protected activity and termination, standing alone, does not warrant inference of retaliatory motive). Gilchrist fails to point out anything els e in the record that might tie her report of sexual harassment to her employer’s decis ion to terminate her. Because Gilchrist failed to establish any connection betwee n her termination and her sexual harassment complaint, the district court pro perly granted summary judgment to Defendants.-17-

C. Retaliation for Courtroom Testimony Gilchrist’s complaint also alleges Defendants violated her First Amendment rights by terminating her employment in retaliation for the expert witness testimony she gave in the James Ables, Harold Weath erly, Elmer Lee Miller, Jeffrey Todd Pierce, Mark Fowler and Bill Fox, Curt is McCarty, and Alfred Brian Mitchell criminal cases. Again, the district courtgranted summary judgment to Defendants. On appeal, Gilchrist contends the dist rict court erred when it determined she failed to prove her courtroom testim ony was truthful and thus entitled to protection under the First Amendment. She also asserts the district court erred when it concluded she did not prove herinterest in providing expert testimony in the seven criminal cases outweighed th e government’s interest in the efficient administration of its criminal justice sy stem. Again, we analyze Gilchrist’s claims under the four-prong test descri bed above in Part III.B. Initially, this court must determine whether Gilchr ist’s speech concerns a matter of public concern. See Schrier , 427 F.3d at 1262. If it does, this court must conduct a Pickering balancing test, in which we weigh Gilchrist’s inter est in speaking against OCPD’s interest in restricting herspeech. Id .; see Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968). (1) Matter of Public Concern6 This evidence is summarized in the departmental rev iew board’s report

recommending Gilchrist’s termination, dated Septemb er 21, 2001. Among other criticisms, the report alleges appellate courts fou nd Gilchrist’s testimony to be “improper” and “at least, misleading.” The board r eport also contends experts found Gilchrist offered testimony that “show[ed] a total disregard for the results -18- In ascertaining whether a public employer has imper missibly infringed upon its employee’s First Amendment rights, the threshol d question “is whether the speech at issue can be fairly characterized as cons tituting speech on a matter of public concern.” Schrier , 427 F.3d at 1262 (quotations omitted). In decidi ng whether speech involved a matter of public concern, courts consider whether the speaker intended to redress a personal grievance orwas motivated by a broader public purpose. Hulen v. Yates , 322 F.3d 1229, 1237 (10th Cir. 2003). The content, form, and context of an employee’s speech, as revealed by the whole record, are also relevant to the inquiry. Id

. “The goal of our criminal justice system [is] to ar rive at the truth, and the interests of the parties in the case are furthered by witnesses who provide testimony to assist the trier of fact.” Worrell v. Henry , 219 F.3d 1197, 1209 (10th Cir. 2000) (quotations and citation omitted). Gene rally, a forensic scientist’s expert testimony in a criminal case will assist the trier of fact in arriving at the truth, and will therefore involve a matter of publi c concern. In this case, however, the record contains substantial evidence i ndicating Gilchrist’s testimony in the seven criminal cases at issue was false, pre judicial, or misleading. 6 “It isof her analysis and a prejudice against the defenda nt” and was “beyond her

expertise.” -19- difficult to see how a maliciously or recklessly fa lse statement could be viewed as addressing a matter of public concern.” Wulf v. City of Wichita , 883 F.2d 842, 859 n.24 (10th Cir. 1989). Gilchrist, however, insists the record does not sho w that her trial testimony was maliciously or recklessly false. Instead, she argues the evidence supports only the claim that her testimony was unclear or un intentionally misleading. For example, while she concedes the district court in Mitchelldetermined some of her testimony was untrue, Gilchrist denies knowingly ly ing on the witness stand. Instead, Gilchrist argues she was not properly ques tioned at trial and therefore omitted information that would have explained her q uestionable testimony. Whenever possible, we must construe the record in G ilchrist’s favor. See
Curtis , 147 F.3d at 1214 (noting courts must construe rec ord favor of nonmoving party when reviewing grants of summary judgment). Based on the evidence presented, it is possible a jury could determine Gi lchrist’s courtroom testimony was not maliciously or recklessly false. According ly, we must conclude her testimony in the seven criminal cases involved a matter of public concern and thus satisfies the first prong of the four-part tes t. (2) Pickering Balancing-20-

Having concluded Gilchrist’s courtroom testimony in volved a matter of public concern, this court must conduct a Pickering balancing analysis. Under the Pickering test, “[e]mployee speech is protected only if the e mployee’s interest in free expression outweighs the employer’s interest i n restricting the speech.” Worrell , 219 F.3d at 1206. As explained below, we conclud e the balancing test in this case unquestionably favors Defendants. First, we consider Gilchrist’s interest in testifyi ng in the seven criminal trials. In evaluating a public employee’s interestin speaking, this court considers “the manner, time, and place” of her speech, as wel l as the context of the dispute. Rankin v. McPherson , 483 U.S. 378, 388 (1987). Importantly, “[t]he bu rden of caution employees bear with respect to the words th ey speak will vary with the extent of authority and public accountability the e mployee’s role entails.” Id . at 390. Here, Gilchrist spoke as an expert witness i n a criminal proceeding where defendants’ lives and liberty interests were at sta ke. She thus bore a heavy burden of caution. Gilchrist’s trial testimony, ho wever, was not cautious. Even when viewed in a light most favorable to her, the r ecord establishes Gilchrist’s expert witness testimony was unclear, misleading, a nd marred by significant omissions. See Part III.C(1). We give scant weight to Gilchrist’s interest in providing this kind of testimony in the seven crimi nal cases at issue. See Johnsen v. Indep. Sch. Dist. No. 3 , 891 F.2d 1485, 1493 (10th Cir. 1989) (concluding-21-

plaintiff’s careless and possibly reckless statement weighed against her in Pickeringbalancing test). Next, we evaluate the OCPD’s interest in restrictin g Gilchrist’s speech. “In weighing the government employer’s interest, the pr imary consideration is the impact of the disputed speech on the effective func tioning of the public employer’s enterprise.” Lytle v. City of Haysville, Kan. , 138 F.3d 857, 868 (10th Cir. 1998) (quotations omitted). “For the balance to be struck in favor of the governmental employer, there must be some evidence of actual disruption.” Hulen , 322 F.3d at 1238–39. “Another relevant consideration is whether the employee’s speech calls into question the employee’ s competence to perform his or her job.” Curtis , 147 F.3d at 1213. In this instance, Gilchrist’s testimony prompted harsh criticism from courts of law, resulted in the conviction of a defendant w ho was later determined to be factually innocent of the crime charged, and requir ed the retrial of another defendant. Her reputation in the criminal justice community was so damaged that her superiors hired a new DNA specialist and restri cted Gilchrist’s role in implementing OCPD’s DNA laboratory to avoid “credib ility and integrity issues in the courts.” The record undeniably supports Def endants’ assertions that Gilchrist’s courtroom testimony resulted in actual disruption to OCPD’s forensic7 Gilchrist argues, without citation to authority, th at these examples of

disruption are irrelevant because they occurred yea rs after her testimony in the seven criminal cases. Her contention has no merit. For purposes of our analysis, it makes no difference that the repercussions of Gi lchrist’s courtroom testimony were not felt immediately. The record makes clear G ilchrist’s courtroom testimony caused actual disruptions in the function ing of OCPD’s forensic laboratory, even if those disruptions took years to manifest. -22- laboratory. 7Moreover, it demonstrates Gilchrist’s expert witn ess testimony reflected negatively on her competence. Accordingl y, OCPD’s interest in restricting Gilchrist’s speech was significant. In balancing the interests of the parties, we concl ude OCPD’s interest in restricting Gilchrist’s courtroom speech outweighedGilchrist’s interest in making such speech. Because Gilchrist cannot satisfy the second prong of the four-part test, she cannot show OCPD’s actions impermissibly infringed on her right to free speech under the First Amendment. The district cou rt therefore correctly granted summary judgment to Defendants. D. Liberty Interest Gilchrist alleges Defendants deprived her of her li berty interest in her good name, reputation, honor, and integrity. The distri ct court granted summary judgment to defendants. Gilchrist appeals the dist rict court’s order, arguing the court erred when it determined Gilchrist’s claim wa s not supported by the evidence.-23-

Statements infringe upon an employee’s liberty inte rest in her good name and reputation when they (1) impugn the employee’s good name, reputation, honor, or integrity; (2) are false; (3) occur in th e course of terminating the employee or foreclose other employment opportunitie s; and (4) are published. Workman v. Jordan , 32 F.3d 475, 481 (10th Cir. 1994). All four elem ents must be satisfied to demonstrate deprivation of the libe rty interest. Id

. Gilchrist contends certain statements made in Boshe ll’s January 16, 2001 memorandum and in FBI Agent Deedrick’s report impug n her good name and reputation. She alleges Boshell’s memorandum accus es her of mismanagement and carelessness in the laboratory, and alleges the FBI report accuses her of incompetent forensic analysis and improper courtroo m testimony. As explained below, however, Gilchrist does not identify any fal se statement, in either the Boshell memorandum or the FBI report, concerning he r laboratory management or forensic work. In an attempt to demonstrate the Boshell report con tained false statements, Gilchrist cites to documents pertaining to consulta nt Roger Kahn’s evaluation of her efforts to implement the DNA laboratory. Gilch rist notes the documents she cites show Kahn’s evaluation applauded some of her work. The Boshell report, however, did not imply otherwise; it candidly ackno wledged Khan’s praise of8 Gilchrist also attempts to demonstrate the Boshell report contained false

statements by citing to documents which show her laboratory expenditures were approved by her superiors. In discussing the firstof Gilchrist’s questionable equipment purchases for the DNA laboratory, the Bos hell report acknowledges the expenditure was approved by Gilchrist’s superio r. While the report does not indicate the rest of Gilchrist’s equipment purchase s were approved by her superiors, neither does it indicate Gilchrist made the purchases without authorization. The Boshell report’s lack of specif icity on this topic does not amount to a false statement. -24- some of Gilchrist’s efforts. The documents Gilchri st cites simply do not establish the Boshell report contained false statements. 8 Gilchrist also notes Agent Deedrick admitted his re port contained an inaccuracy, and alleges the inaccuracy amounts to afalse statement. At Gilchrist’s pretermination hearing, Agent Deedrick admitted his report made it seem as though certain of Gilchrist’s statements atthe trial of David J. Bryson were consecutive when in fact they were taken from different sections of the trial transcript. After comparing the original trial tra nscript with the FBI report, it is readily evident the FBI report did not alter the import of Gilchrist’s testimony. Gilchrist failed to demonstrate the FBI report cont ained false statements. The record does not support Gilchrist’s assertions that the Boshell report and the FBI report contain false statements which i mpugn her reputation. Gilchrist thus cannot demonstrate Defendants depriv ed her of her liberty interest in her good name, reputation, honor, or integrity. The district court properly granted summary judgment on this issue to Defendant s.-25-

E. Other Claims (1) Composition of Departmental Review Board Defendants sought summary judgment on any claim Gil christ may have asserted with respect to the composition of the dep artmental review board that conducted Gilchrist’s pretermination hearing. The district court observed Gilchrist’s attorney had explicitly consented to th e composition of the review board in a letter dated May 18, 2001, and granted D efendants’ motion. On appeal, Gilchrist apparently misconstrues the distr ict court’s order. She argues her failure to object to the composition of the dep artmental review board does not operate as a waiver of her constitutional rights. The district court, however, never indicated Gilchrist had waived her constitutional r ights. It only ruled Gilchrist had forfeited her right to make legal claims based on the composition of the review board. Because Gilchrist’s brief does not a ddress the issue ruled upon by the district court—claims relating to the composition of the departmental review board—she has waived the argument. See Ambus v. Granite Bd. of Educ. , 975 F.2d 1555, 1558 n.1 (10th Cir. 1992), modified on other grounds on reh’g , 995 F.2d 992 (10th Cir. 1993). (2) Denial of Discovery Gilchrist’s complaint alleged Defendants violated h er right to procedural due process when they failed to turn over to her th e results of OCPD’s-26-

investigation of her 1998 report of sexual harassme nt involving Major Spencer. The district court observed the evidence indicated Gilchrist had received all documents pertaining to the Spencer investigation e xcept certain notes Defendants had deemed irrelevant. The court concluded Gilchri st had not shown Defendants’ failure to provide her with the notes or with otherdocuments had deprived her of due process, and it granted summary judgment to def endants. “A court of appeals is not required to manufacture an appellant’s argument on appeal when it has failed in its burden to draw our attention to the error below. In the event of such a failure, the court will ordi narily consider the appellant’s point waived.” Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (quotation and citation omitted); see Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (noting this court “will not craft a party’s arguments for him”). Gilchrist’s appellate brief contains a head ing entitled “Denial of Discovery,” followed by a summary of Defendants’ re asons for withholding the requested information. It does not, however, conta in an argument on the subject. Because Gilchrist failed to present an argument, we consider the issue waived. (3) Qualified Immunity Certain of the defendants asserted they were entitl ed to summary judgment on the basis of qualified immunity. The district c ourt agreed, concluding Gilchrist failed to show Defendants’ actions violat ed clearly established law.-27-

Gilchrist contends the district court erred in gran ting summary judgment on the issue of qualified immunity. To defeat a claim of qualified immunity, Gilchrist must first demonstrate a violation of a constitutional right. See Finn v. New Mexico , 249 F.3d 1241, 1250 (10th Cir. 2001). She contends defendants violated her clearly established right to testify at a criminal trial without being subjec ted to termination. As discussed in Part III.C above, Gilchrist has not demonstrated defendants violated her First Amendment right to testify in a court of law. Beca use Gilchrist has failed to establish a violation of a constitutional right, we find no error in the district court’s grant of summary judgment to the defendants

. (4) Conspiracy Gilchrist alleged certain of the defendants conspir ed to deprive her of constitutional rights. The district court determin ed Gilchrist failed to demonstrate an actual deprivation of federally protected rights , and granted summary judgment to defendants. Gilchrist contends the district cou rt’s decision was error. To recover under a § 1983 conspiracy claim, a plaintif f must prove (1) a conspiracy and (2) an actual deprivation of rights. Dixon v. City of Lawton, Okla. , 898 F.2d 1443, 1449 (10th Cir. 1990). Like the district cou rt, this court concludes Gilchrist failed to point to evidence indicating an actual deprivation of rights. See supraParts III B.–D., III E(2). We discern no error in the court below.-28-

IV. CONCLUSION For the foregoing reasons, we affirm the judgment of the United States District Court for the Western District of Oklahoma

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge