                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                             JUN 25 2003
                         FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                   Clerk


JOYCE A. GILCHRIST,

            Plaintiff-Appellee,

v.                                        Nos. 02-6352 & 02-6353
                                         (D.C. No. CIV-02-538-R)
BILL CITTY, individually and in his             (W.D. Okla.)
official capacity as Assistant Police
Chief; KEN MCDONALD and
JOHNNY KUHLMAN, both
individually and in their official
capacities as Majors 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;
JAMES D. COUCH, individually,

            Defendants-Appellants,

and

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;
LAURA SCHILE, individually and in
her official capacity as Forensic
Chemist with the Oklahoma City
Police Department,

            Defendants.


                          ORDER AND JUDGMENT            *




Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ requests for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

      In these companioned cases, defendants Bill Citty, Ken McDonald, Johnny

Kuhlman, Richard Dawes, Matthew Scott, and James D. Couch appeal from the

district court’s order denying their motions to dismiss plaintiff’s 42 U.S.C. § 1983

wrongful discharge suit on the grounds that they are protected by absolute and


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      This order and judgment is not binding precedent, except under the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

                                         -2-
qualified immunity. We have jurisdiction over these interlocutory appeals:

“[T]he denial of a motion to dismiss based on qualified or absolute immunity is

immediately appealable under the      Cohen [v. Beneficial Indus. Loan Corp.   ,

337 U.S. 541 (1949)] collateral order doctrine.”     Tonkovich v. Kan. Bd. of Regents    ,

159 F.3d 504, 515 (10th Cir. 1998) (footnote omitted). We determine that, at the

Rule 12(b)(6) stage of this litigation, defendants have not demonstrated their

entitlement to the protection of immunity. We affirm.


                      STANDARD AND SCOPE OF REVIEW

       We review de novo a district court’s ruling on a motion to dismiss for

failure to state a claim upon which relief may be granted.      Dill v. City of Edmond ,

155 F.3d 1193, 1201 (10th Cir. 1998). Our “‘function on a Rule 12(b)(6) motion

is not to weigh potential evidence that the parties might present at trial, but to

assess whether the plaintiff’s complaint alone is legally sufficient to state a claim

for which relief may be granted.’”     Sutton v. Utah State Sch. for Deaf & Blind    ,

173 F.3d 1226, 1236 (10th Cir. 1999) (quoting       Miller v. Glanz , 948 F.2d 1562,

1565 (10th Cir. 1991)). We “accept[] as true all well-pleaded allegations in the

complaint and constru[e] them in a manner favorable to the non-moving party.”

Moore v. Gunnison Valley Hosp.       , 310 F.3d 1315, 1316 (10th Cir. 2002).

       We generally “look only at the four corners of the complaint” because we

are “reviewing the sufficiency of the complaint alone.”      Moffett v. Halliburton

                                            -3-
Energy Servs., Inc. , 291 F.3d 1227, 1231 (10th Cir. 2002). There are exceptions to

this practice, however. As relevant to the instant Rule 12(b)(6) analysis, we may

take judicial notice of the existence of the opinions of other courts but not the

truth of the facts recited therein.   Lee v. City of Los Angeles   , 250 F.3d 668, 690

(9th Cir. 2001); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group

Ltd. , 181 F.3d 410, 426 (3d Cir. 1999).

       The brief summary provided below, therefore, is compiled primarily from

plaintiff’s complaint. It also includes information from published state and federal

court cases–not for the truth of the factual findings relating to Ms. Gilchrist, but

for the fact that defendants were aware of their existence. The summary does not

rely on factual allegations made only by defendants or on documents submitted

with the motions to dismiss. Specifically, it does not incorporate defendants’

characterization of the review board report recommending Gilchrist’s firing.       1




1
       Although defendants did not attach the Review Board report to their
motions to dismiss, they attached numerous other documents which Gilchrist had
attached to an earlier complaint. See Aplt. App., 91-103. These documents have
no place in our Rule 12(b)(6) review.

       Defendants state that they “offered to produce [the report] but were afraid
to attach it for fear it would turn [their] Motion to Dismiss into a Motion for
Summary Judgment (Fed.R.Civ.P., Rule 12b) defeating their right not to be
subjected to the burdens of discovery,    etc. ” Aplt. Br. at 9, n.8; see also id. at 23
(“[T]heir [sic] exists an argument that by filing a Motion for Summary Judgment,
Appellants would give up their right not to face the burdens of discovery.”).
They also express a concern that the district court would not have given the
                                                                             (continued...)

                                            -4-
                             FACTUAL SUMMARY

      Joyce Gilchrist was an Oklahoma City Police Department forensic chemist

from 1980 through September 2001. Her job required her to conduct chemical

tests on physical evidence and provide expert testimony on the results of the tests.

For a number of years, her police-department supervisors and prosecutors believed

her to be an excellent employee. Apparently, they considered her expert testimony

to be especially effective. Problems with Gilchrist’s efforts on behalf of the

prosecution were simmering, however. In several cases, the Oklahoma Court of

Criminal Appeals determined that Gilchrist violated discovery orders by

inexcusably delaying a forensic examination and providing reports to the defense

in an untimely manner.   Miller v. State , 809 P.2d 1317, 1319-20 (Okla. Crim. App.



1
 (...continued)
authorization to file a second motion for summary judgment required under the
Local Rules for the United States District Court of Oklahoma. Id. at 23.

        The Review Board report, however, could have fallen into a recognized
exception to the general rule limiting this court’s review to the complaint. “[I]f a
plaintiff does not incorporate by reference or attach a document to its complaint,
[and] the document is referred to in the complaint and is central to the plaintiff’s
claim, a defendant may submit an indisputably authentic copy to the court to be
considered on a motion to dismiss.”    GFF Corp. v. Associated Wholesale Grocers,
Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997). “If the rule were otherwise, a
plaintiff with a deficient claim could survive a motion to dismiss simply by not
attaching a dispositive document upon which the plaintiff relied.”   Id. at 1385.
The Review Board report is certainly central to Gilchrist’s claim. It is not part of
the record, however, and defendants’ statements concerning the report cannot be
considered.

                                         -5-
1991); Pierce v. State , 786 P.2d 1255, 1261 (Okla. Crim. App. 1990);       McCarty v.

State , 765 P.2d 1215, 1217 (Okla. Crim. App. 1988).

       In 1998, Gilchrist reported to the police chief that she heard that one of the

defendants, Major Garold Spencer, had sexually harassed a female vendor. She

alleges that Spencer and his allies on the police force were outraged, even though

he was not disciplined in connection with the charge.

       Gilchrist’s expert testimony was even more seriously called into question in

September 1999 in the federal district court’s decision in     Mitchell v. Ward ,

150 F. Supp. 2d 1194, 1220-29 (W.D. Okla. 1999),        aff’d in part and rev’d in part

by Mitchell v. Gibson , 262 F.3d 1036 (10th Cir. 2001). This court granted habeas

relief to Mitchell based in part upon the district court’s finding that Gilchrist’s

testimony was false or misleading.     Mitchell v. Gibson , 262 F.3d at 1063-66. The

police department responded to the district court’s publication of the     Mitchell case

by prohibiting Gilchrist from DNA testing, giving her menial assignments, and

ordering her to move out of her office. They also arranged for an FBI agent to

conduct a re-analysis of the forensic evidence and a review of Gilchrist’s trial

testimony in eight cases.

       Gilchrist was advised of misconduct charges: problems with her expert

testimony and also managerial shortcomings. She filed a grievance objecting to

the charges. Defendant M.T. Berry, the chief of police, named defendants Bill


                                             -6-
Citty (assistant police chief), Richard Dawes (a police-department chemist

supervisor), Johnny Kuhlman (a police-department major), Ken McDonald

(a police-department major), and Matthew Scott (a police-department chemist) to

the Oklahoma City Police Department Review Board responsible for conducting

proceedings in Gilchrist’s grievance.

      The Review Board held a multi-day hearing in August 2001. With the

assistance of counsel, Gilchrist testified, presented a witness, and cross-examined

police-department witnesses. The Board then issued a report recommending the

termination of Gilchrist’s employment, primarily for her expert testimony in court

proceedings in seven cases, decided from 1984 to 1992. On September 25, 2001,

Berry followed the Board’s recommendation and discharged Gilchrist. Her

termination was approved by defendant Couch, the city manager.

      She filed this § 1983 lawsuit, naming as defendants Oklahoma City, the city

manager, the chief of police, the deputy chief of police, her former supervisor,

Major Spencer, the police-department chemist who attempted to duplicate

Gilchrist’s analyses, and members of the Review Board. Gilchrist’s claims

included: First-Amendment retaliation for filing charges against Spencer,




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First-Amendment retaliation for providing truthful expert testimony, conspiracy to

retaliate, defamation, and deprivation of substantive and procedural due process.   2



Alleging that defendants retaliated against her and terminated her employment due

to her exercise of her First-Amendment right to testify in court and also due to her

reporting of Major Spencer’s alleged sexual harassment. She explicitly alleges

that her testimony was consistently truthful and accurate and that defendants

orchestrated false accusations of mishandling, withholding, and misrepresenting

evidence.

      The members of the Review Board and Defendant Couch moved to dismiss,

arguing that they were entitled to judicial or quasi-judicial absolute immunity and

qualified immunity. The district court denied defendants’ motion. In two separate

orders, one addressing the Review Board defendants’ motion and one addressing

defendant Couch’s motion, the court concluded that, at the Rule 12(b)(6) stage of

the proceedings, they had not demonstrated entitlement to either absolute or

qualified immunity. This appeal followed.




2
       The district court dismissed Gilchrist’s procedural due process claim
against the Review Board defendants. That dismissal is not an issue in this
interlocutory appeal.

                                            -8-
                                      DISCUSSION

Absolute immunity

       Defendants argue that they are entitled to absolute immunity from damages

for their termination decision, under the rationale of     Butz v. Economou , 438 U.S.

478 (1978).   3
                  In Butz , the Supreme Court held that agency officials who perform

quasi-judicial functions are entitled to absolute immunity from suit.            Id. at 514.

Later, in Cleavinger v. Saxner , 474 U.S. 193 (1985), the Court extended absolute

immunity to federal hearing examiners and administrative law judges. It refused,

however, to accord absolute immunity to employees of the Bureau of Prisons

temporarily diverted from their usual duties to serve on a prison discipline

committee, id. at 203-04, because they “are under obvious pressure to resolve

a disciplinary dispute in favor of the institution and their fellow employee,”           id.

at 204. Absolute immunity is recognized only sparingly, and officials seeking the

immunity bear the burden of showing that their actions are entitled to such

absolute protection.     Burns v. Reed , 500 U.S. 478, 486-87 (1991). There is a

presumption that qualified immunity is generally sufficient to protect government

officials. Id.



3
       Defendant Citty, the chairman of the Review Board, also asserts that he is
entitled to absolute immunity for his denial of one of Gilchrist’s pre-termination
requests for documents. The analysis of this issue is identical to that of the major
issue relating to all defendants.

                                             -9-
      A court must engage in a functional analysis of an official’s conduct to

determine whether it is quasi-judicial in nature, and whether absolute immunity

attaches. Id. at 512. Following and applying    Cleavinger , the Tenth Circuit has

identified six factors, among others

      as characteristic of the judicial process and to be considered in
      determining absolute as contrasted from qualified immunity: (a) the
      need to assure that the individual can perform his functions without
      harassment or intimidation; (b) the presence of safeguards that reduce
      the need for private damages actions as a means of controlling
      unconstitutional conduct; (c) insulation from political influence;
      (d) the importance of precedent; (e) the adversary nature of the
      process; and (f) the correctability of error on appeal.

Moore , 310 F.3d at 1317.

      In this case, the limited record on appeal does not permit a reasoned

balancing of the Moore factors. For instance, it contains insufficient information

concerning the importance of precedent, the insulation of Review Board members

from political influence, the correctability of error on agency review, or the role of

Defendant Couch. The district court’s determination that defendants failed to

show entitlement to absolute immunity is therefore sustainable.

Qualified immunity

      As an alternative basis for dismissal, defendants argue that the doctrine of

qualified immunity protects them from liability to Gilchrist.

      Under the doctrine of qualified immunity, government officials
      performing discretionary functions generally are shielded from
      liability for civil damages insofar as their conduct does not violate

                                         -10-
       clearly established statutory or constitutional rights of which a
       reasonable person would have known. The key to the qualified
       immunity inquiry is the objective reasonableness of the official’s
       conduct in light of the legal rules that were clearly established at the
       time the action was taken.

Tonkovich , 159 F.3d at 516 (quotations, citations, and parentheticals omitted).

“Once a defendant raises the defense of qualified immunity in the context of

a motion to dismiss, a court must first determine whether the plaintiff has asserted

a violation of federal law.”    Currier v. Doran , 242 F.3d 905, 917 (10th Cir. 2001).

“If the answer is yes, then we determine whether the right was clearly established

such that a reasonable person in the defendant’s position would have known that

his or her conduct violated that right.”   Tonkovich , 159 F.3d at 516 (quotations,

citations, and parentheticals omitted).

       The issue here is whether Gilchrist’s claim that she was discharged for

giving truthful opinion testimony satisfies both prongs of the qualified-immunity

test. It is well-established that “truthful testimony is protected by the First

Amendment and that a government employee may not be fired or subjected to

other adverse action as the result of such testimony.”     Worrell v. Henry , 219 F.3d

1197, 1204-05 (10th Cir. 2000). “[Q]ualified immunity is not available to a

defendant who knowingly punishes an employee for uttering truthful testimony on

matters of public concern.”     Wright v. Ill. Dep’t of Children & Family Servs.   ,

40 F.3d 1492, 1505 (7th Cir. 1994).


                                            -11-
       Defendants point out, however, that if an employee’s “supervisors

reasonably believed, after an adequate investigation, that her testimony was false,

even if it actually was true, they could punish her on the basis of their

investigation.”   Id. at 1506 (citing Waters v. Churchill , 511 U.S. 661, 678 (1994)

(plurality opinion)). Defendants claim that, at the very least, the published cases

criticizing Gilchrist’s performance provided a reasonable basis for their belief that

Gilchrist’s testimony was false.

       The complaint, however, alleges that defendants knew that certain portions

of Gilchrist’s testimony were corroborated by a later analysis, that DNA

technology did not exist at the time of her analysis, that her trial testimony was

misrepresented, and that the FBI agent acknowledged that certain of her analyses

were highly subjective. We agree with the district court that Gilchrist’s

allegations adequately raise an inference that defendants did not reasonably

believe her testimony to be false. Confining our analysis, as we must, to

Gilchrist’s allegations and judicially noticed facts, we determine that she has

adequately stated a violation of her First Amendment right to engage in protected

speech. Further, this right was clearly established at the time of her discharge.

As a consequence, the district court correctly denied defendants’ Rule 12(b)(6)

motion.




                                          -12-
                                  CONCLUSION

      Although we make no comment on the ultimate merit of Gilchrist’s case,

defendants have not shown entitlement to absolute or qualified immunity at this

point in the litigation. The district court’s denial of defendants’ motions to

dismiss is AFFIRMED. The defendants’ motion to file a supplemental appendix

is DENIED.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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