Summary Calendar SARAH PETERSON SYLVEST v. Louisiana Suburban Press, Inc; Louisiana State Newspapers Inc; Moody Company

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 11, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-31049
Summary Calendar
SARAH PETERSON SYLVEST
Plaintiff - Appellant
v.
LOUISIANA SUBURBAN PRESS, INC; LOUISIANA STATE NEWSPAPERS
INC; MOODY COMPANY
Defendants - Appellees
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Appeal from the United States District Court
for the Middle District of Louisiana, Baton Rouge
3:99-CV-599
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Sarah Sylvest appeals from the jury
verdict and entry of judgment in favor of Defendants-Appellees
Louisiana Suburban Press, Inc., Louisiana State Newspapers, Inc.,
and Moody Company. On appeal, Sylvest contends that the district
court committed error in the wording of both the jury
instructions and the jury verdict form. For the reasons that
follow, we dismiss Sylvest’s appeal and affirm the judgment of
the district court.

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No. 04-31049
-2-
Sylvest brought this action against the Defendants, alleging
that they had violated her rights under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621,
et seq. The district court granted Defendants’ motion for
summary judgment and dismissed Sylvest’s claims under the ADEA, a
judgment Sylvest does not appeal. The district court, however,
denied Defendants’ motion for summary judgment with respect to
Sylvest’s ADA claims and allowed those claims to proceed to
trial. At trial, the jury rendered a unanimous verdict rejecting
Sylvest’s claims under the ADA, and the district court
subsequently entered judgment for Defendants. Thereafter,
Sylvest filed a notice of appeal, but failed to include the trial
transcript in the record on appeal.
Sylvest's failure to include the trial transcript in the
record on appeal precludes us from reviewing her appeal on the
merits. Under the Federal Rules of Appellate Procedure, an
appellant who “intends to urge on appeal that a finding or
conclusion is unsupported by the evidence or is contrary to the
evidence . . . must include in the record a transcript of all
evidence relevant to that finding or conclusion.” Fed. R. App. P.
10(b)(2). Failure to include a transcript in the record is
grounds for dismissal; however, the decision whether to dismiss
an appeal due to lack of a transcript is within our discretion.

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No. 04-31049
-3-
See, e.g., RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th
Cir. 1995); Coats v. Pierre, 890 F.2d 728, 731 (5th Cir. 1989).
In the instant case, a transcript is required because
Sylvest challenges the jury instructions, which were delivered
orally by the district court and recorded only by the court
reporter. A transcript also is required to determine whether
Sylvest’s objections to the jury verdict form were properly
lodged in the district court. Absent a transcript, there is no
record of how the jury instructions were actually worded or
whether Sylvest objected at trial to the jury verdict form,
thereby rendering appellate review of the issues raised by
Sylvest impossible. Accordingly, we dismiss Sylvest’s appeal and
affirm the judgment of the district court.

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