Lisa A. Reed v. Pediatric Services of America Inc

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10159
____________________
LISA A. REED,
Plaintiff-Appellant,
versus
PEDIATRIC SERVICES OF AMERICA INC,
Defendant-Appellee,
LAURA RHODES,
SHELY GENTRY,
Defendants.
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2 Opinion of the Court 21-10159
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:20-cv-00064-HLM
____________________
Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.
PER CURIAM:
This appeal from summary judgment returns to us
following a limited remand to confirm the accuracy of a key piece
of record evidence—the transcript of appellant Lisa Reed’s
deposition. The record on remand has confirmed the transcript’s
accuracy and revealed the falsity of Reed’s repeated assertions to
the contrary. Reed’s flagrant factual misrepresentations render her
appeal frivolous. Accordingly, as set out below, we dismiss the
appeal.
I.
The underlying facts of this appeal are set out in detail in our
April 18, 2022 limited remand order. In short, proceeding pro se,
Reed filed an employment discrimination action against her former
employer, Pediatric Services of America Inc. (“Pediatric”). During
discovery, Pediatric took Reed’s deposition. After reviewing the
transcript, Reed filed a motion challenging its accuracy, swearing
under penalty of perjury that the transcript misquoted her
deposition testimony and omitted some portions. In response,
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21-10159 Opinion of the Court 3
Pediatric submitted a declaration—unsworn—from an employee
of the court reporter service responsible for transcribing Reed’s
deposition, in which the employee represented that the transcript
was accurate. The magistrate judge denied Reed’s motion
challenging the transcript’s accuracy. Later, the district court
granted summary judgment in Pediatric’s favor.
On appeal, Reed again challenged the accuracy of her
deposition transcript. With the benefit of oral argument—where
we heard from Reed, Pediatric’s counsel, and a court-appointed
amicus—we vacated the judgment below and issued a limited
remand order in which we instructed the district court to make the
audiotape from Reed’s deposition available to the parties and, if
necessary, to compare any remaining disputed parts of the
transcript with the audio in order to confirm whether the transcript
was accurate.
On remand, the magistrate judge directed the court
reporting service to make the deposition audiotape available to
Reed and the court and instructed Reed to listen to the tape and
mark any errors. The magistrate judge and his staff then listened
to the audiotape and found no substantive discrepancies between
the audio and the transcript. After listening to the audio herself,
Reed was unable to identify any errors in the transcript.
Faced with the inconvenient truth about her allegations,
Reed pivoted to a new theory: that the audiotape from her
deposition had somehow been altered. To address this contention,
the magistrate held an evidentiary hearing. At the hearing, the
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4 Opinion of the Court 21-10159
court reporter who transcribed Reed’s deposition and her manager
at the court reporting service each testified under oath to the
deposition audio’s accuracy. Reed was given the opportunity to
cross-examine both witnesses.
The magistrate judge then issued a report and
recommendation in which he found, in keeping with the evidence
adduced on remand, that there were “no substantive discrepancies
between the audio recordings of Ms. Reed’s deposition and the
transcript.” Thus, the magistrate judge found that Reed’s
“contention that the deposition transcript is inaccurate is
demonstrably false.” The magistrate judge further found that the
audiotape from the deposition was unaltered. Based on these
findings, the magistrate judge recommended that the judgment in
Pediatric’s favor be reinstated.
The district court adopted the magistrate judge’s report and
recommendation, agreeing that Reed had “failed to show that the
audio recordings of her deposition were somehow altered or that
the deposition transcript was inaccurate.” The district court noted
that “its staff also listened to the audio recordings of Plaintiff’s
deposition in their entirety” and, like the magistrate judge and his
staff, “found no substantive discrepancies.” As a result, the district
court reinstated the judgment in Pediatric’s favor and
recommended that we sanction Reed by dismissing her appeal.
Jurisdiction has now returned to this Court.
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21-10159 Opinion of the Court 5
II.
Reed’s appeal is due for dismissal. Sadly, the perfected
record indicates that Reed has not been honest with the courts.
Under penalty of perjury, Reed asserted in the district court, upon
first reviewing her deposition transcript, that the transcript was rife
with errors. She repeated those assertions in this Court on appeal
and in the district court on remand. It is now crystal clear that
those claims never had any factual basis whatsoever. Reed has
listened to the deposition audio herself and failed to identify any
material inconsistencies between the tape and the transcript. Yet,
rather than accept reality, Reed continues to blame mysterious
third parties for deceiving the magistrate judge, district court, and
this Court.
We doubt that Reed’s appeal from summary judgment has
any substantive validity. But we need not and do not reach the
merits of the appeal. Reed’s repeated and groundless distortions of
the record have revealed her appeal to be frivolous, such that
summary dismissal is warranted without further elaboration. 1 See
1
We note again the highly unusual facts of this case. On appeal, we were
presented with a record containing, on the one hand, particularized allegations
from Reed about the accuracy of her deposition transcript—submitted under
penalty of perjury—and on the other hand, an unsworn declaration from a
manager at the court reporter service denying those allegations and an
audiotape that was not in the record and that Reed had never been given a
chance to hear.
There has been some confusion about whether the court reporter service
manager’s declaration verifying the deposition transcript’s accuracy was
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6 Opinion of the Court 21-10159
11th Cir. R. 42-4 (“If it shall appear to the court at any time that an
appeal is frivolous and entirely without merit, the appeal may be
dismissed.”); Neitzke v. Williams, 490 U.S. 319, 328 (1989) (a
lawsuit is frivolous if it involves “claims describing fantastic or
delusional scenarios”).
The appeal is DISMISSED.
sworn or otherwise executed under penalty of perjury. To be clear: the
manager’s declaration was unsworn. Nor was it executed under penalty of
perjury pursuant to the well-known and specific requirements for unsworn
declarations set out in 28 U.S.C. § 1746. These technicalities matter. In the
future, parties can help themselves and the district courts by ensuring that
their witnesses’ declarations are sworn under oath or otherwise bear the
indicia of trustworthiness outlined in § 1746.