Lisa A. Reed v. Pediatric Services of America Inc.

[DO NOT PUBLISH]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 J ILL PRYOR , BRANCH, and E D CARNES, Circuit Judges.
PER CURIAM:
Lisa Reed is a former employee of Pediatric Services of
America Inc. (“Pediatric”). After her employment ended, Reed
sued Pediatric for employment discrimination, and the district
court later granted summary judgment in Pediatric’s favor. This is
Reed’s appeal from summary judgment.
In the district court, the parties disputed the accuracy of a
critical part of the record: the transcript from Reed’s deposition.
Reed claimed that the transcript was rife with errors. Pediatric said
it was not. Based solely on the parties’ dueling written
submissions, the district court sided with Pediatric. There is an
audiotape of the deposition, but the district court did not review it,
it is not in the record, and no one other than an employee of a
private-entity court reporter service seems to have heard it. For
the reasons set out below, while retaining jurisdiction over this
appeal, we vacate the judgment and remand so that the parties and
the district court may determine whether the parts of the
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21-10159 Opinion of the Court 3
deposition transcript that Reed has identified as inaccurate are in
fact inaccurate.
I.
In March 2020, proceeding pro se, Reed filed suit against
Pediatric, asserting claims of race and sex discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2(a) and 2000e-3(a).1 During discovery, Pediatric took
Reed’s deposition, which was audiotaped. A court reporter
employed by a private company transcribed the deposition and
prepared a transcript, which she certified was accurate.
After reviewing her deposition transcript, rather than
submit errata-sheet edits under Rule 30(e), Reed filed a motion
challenging the transcript’s accuracy. Under penalty of perjury,
Reed averred that the transcript “stated things [she] did not say,”
“repeatedly misquoted [her],” “rearrange[d] . . . questions and
answers,” and “omitted things.” Along with her motion, Reed filed
an annotated copy of the transcript marking various substantive
errors, including numerous colloquies between herself and
Pediatric’s counsel that she said were “not stated” or “never
happened,” and other question-and-answer exchanges that she said
were excised entirely. Reed asked the district court to review the
1 Reed also asserted claims against two individual defendants that were later
dismissed.
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4 Opinion of the Court 21-10159
audiotape from her deposition to confirm the transcript’s errors, or
to simply declare the transcript inadmissible.
In response, Pediatric asserted that Reed’s deposition
transcript was perfectly accurate, and that her assertions of error
were a “wild conspiracy theory.” Pediatric submitted an unsworn
declaration from an employee of the private-entity court reporter
service, in which the employee represented that he listened to the
audiotape from Reed’s deposition, “compared each word” with the
transcript, and concluded that the transcript was accurate.
Relying solely on the parties’ written submissions, the
magistrate judge denied Reed’s motion challenging her deposition
transcript’s accuracy, stating that he “f[ound] no credence in
plaintiff’s assertions.” The magistrate judge did not request a copy
of or review the audiotape from Reed’s deposition, which was in
the court reporter service’s possession. Reed did not file an
objection to the magistrate judge’s order.
The parties then filed cross-motions for summary judgment.
In her summary judgment filings, Reed again asserted that her
deposition transcript was erroneous and that the court should not
rely on it. In its summary judgment filings, Pediatric cited heavily
to Reed’s deposition transcript. Relying significantly on Reed’s
deposition testimony as set out in the transcript, the magistrate
judge recommended that the district court grant Pediatric’s motion
for summary judgment.
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21-10159 Opinion of the Court 5
Reed filed objections to the magistrate judge’s summary
judgment recommendation, in which she again challenged the
accuracy of her deposition transcript. Overruling those objections,
the district court adopted the magistrate judge’s recommendation
and granted summary judgment in Pediatric’s favor. In its
summary judgment order, the district court expressly considered
the merits of Reed’s challenge to the accuracy of her deposition
transcript, ruling that the magistrate judge “correctly rejected
[Reed’s] contention” that her transcript was erroneous and
“properly resolved the issue.” Like the magistrate judge, the
district court did not request a copy of or review the audiotape
from Reed’s deposition transcript. Reed timely appealed from the
district court’s summary judgment order.
II.
Given all the circumstances of this case, including the fact
that the transcript of Reed’s deposition is a critical part of the
record, we conclude that the district court’s judgment should be
vacated and the case remanded for a determination of the accuracy
of the parts of Reed’s deposition transcript that she has marked as
inaccurate.2 On remand, we instruct the district court to make the
2 Pediatric argues that Reed waived her right to appeal the district court’s
denial of her challenge to the accuracy of her deposition transcript by failing
to file an objection to the magistrate judge’s original order denying that
challenge. Reed’s failure to object to the magistrate judge’s order on the
deposition transcript issue would typically foreclose our review.
See Fed. R.
Civ. P. 72(a) (providing that, when a magistrate judge rules on a
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6 Opinion of the Court 21-10159
audiotape from Reed’s deposition available to the parties. We
direct Reed, along with her attorney if she has one at the time, and
Pediatric’s counsel to listen to the audio recording of Reed’s
deposition and reach an agreement, if they can, about whether the
parts of the deposition transcript that Reed has marked as
inaccurate are in fact inaccurate. After the parties have completed
that task, if they continue to disagree about the accuracy of any of
the marked parts of the transcript, the district court should resolve
the matter by comparing those disputed parts of the deposition
transcript with the audiotape of Reed’s deposition. To be clear, we
are not directing the parties or the district court to go through the
entire deposition transcript compared to the entire audio
recording. The focus should be on the parts of the transcript that
Reed has already marked as inaccurate.
On remand, the district court may conduct other
proceedings consistent with this opinion as appropriate, including,
if necessary, modifying the summary judgment order and
nondispositive matter, “[a] party may not assign as error a defect in the order
not timely objected to”);
Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361,
1365 (11th Cir. 2007) (“[W]here a party fails to timely challenge a magistrate’s
nondispositive order before the district court, the party waive[s] his right to
appeal those orders in this Court.”). However, given that Reed did timely
object to the magistrate judge’s report recommending summary judgment in
Pediatric’s favor, that the district court considered the merits of the deposition
transcript issue in its order adopting that recommendation, and that Reed
timely appealed
that order, we will consider the issue of whether the transcript
of her deposition is accurate.
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21-10159 Opinion of the Court 7
reinstating or altering the final judgment based on it. After the
district court conducts the proceedings we have directed, we leave
to its determination whether to sanction any party, and whether to
refer anyone involved in this case—party or otherwise—to the U.S.
Attorney’s Office for an investigation into whether any crime,
including perjury, has been committed.
Following this remand, the district court shall return the
record as modified to this Court for further consideration. This
panel retains jurisdiction to resolve this appeal after we receive the
district court’s response.
See Ballard v. Comm’r, 429 F.3d 1026,
1027 n.1 (11th Cir. 2005).
VACATED AND REMANDED.
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