United States Court of Appeals, District of Columbia Circuit
TONYA COLEMAN-LEE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH LEE, APPELLANT
GOVERNMENT OF THE DISTRICT OF COLUMBIA, APPELLEE
Argued: February 18, 2015.
Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-01832).
Jason H. Ehrenberg argued the cause for appellant. With him on the briefs was James C. Bailey.
Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Irvin B. Nathan, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Before: GRIFFITH, Circuit Judge, EDWARDS, Senior Circuit Judge, and SILBERMAN, Senior Circuit Judge.
An individual is disabled within the meaning of the Americans with Disabilities Act (" ADA" or " Act" ) if he or she has " a physical or mental impairment that substantially limits one or more major life
activities." 42 U.S.C. § 12102(1)(A). Under the governing version of the ADA in effect at the time this case arose, whether a physical or mental impairment " substantially limit[ed]" a major life activity was determined by taking into account the benefits and burdens of measures used to mitigate the effects of the impairment. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). For example, under the so-called Sutton rule, it might be determined that an individual disabled by poor vision could no longer be considered disabled under the Act if wearing corrective lenses fully mitigated the vision impairment.
This appeal arises from an ADA discrimination lawsuit in which a jury returned a verdict finding that the plaintiff, Joseph Lee (" Lee" ), a diabetic, was not disabled within the meaning of the ADA. See Lee v. District of Columbia, 19 F.Supp.3d 281, 285 (D.D.C. 2014) (denying a motion for a new trial). Although Lee has since passed away, his wife, Tonya Coleman-Lee (" Coleman-Lee" ), as representative of Lee's estate, appeals the District Court's judgment.
Coleman-Lee argues that the jury instruction given by the District Court was error because it misled the jury. As explained below, the problem here is that the specific objection to the jury instruction that is now raised by Coleman-Lee on this appeal was never raised and preserved by Lee. As a result, the theory underlying Coleman-Lee's objection on appeal is entirely different from the theory that was pursued by Lee at trial. Therefore, we review only for plain error. We hold that Coleman-Lee has not shown plain error. We also hold that the District Court did not err in overruling the objection that was raised by Lee at trial because there was evidence in the record about mitigating measures that supported the contested jury instruction. We therefore affirm the judgment of the District Court.
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In 2008, Lee, a District of Columbia correctional officer, was fired for neglect of duty after allegedly falling asleep on the job several times. Lee filed suit under the ADA, claiming that his diabetes rendered him disabled within the meaning of the Act. He further claimed that the District of Columbia (" District" ) discriminated against him in violation of the Act, including by terminating his employment. A central question in the case was whether Lee's diabetes disabled him at all. His diabetes, when uncontrolled, could cause him to fall asleep, fall down, or even, possibly, lapse into a diabetic coma. However, he could effectively control his medical condition by eating three meals a day plus periodic snacks as well as by taking certain medication.
The District argued, inter alia, that Lee was not disabled because his diabetes was controlled by his eating regimen, and that the meal regimen did not itself " substantially limit" Lee's eating because eating on a regular schedule was not a substantial limitation. Before the case was submitted to the jury, the District requested a jury instruction laying out the Sutton rule and the ...