United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2015 Decided May 19, 2015

No. 13-7123

TONYA COLEMAN-LEE, AS PERSONAL REPRESENTATIVE OF 

THE ESTATE OF JOSEPH LEE,

APPELLANT

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA,

APPELLEE

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.
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Opinion for the Court filed PER CURIAM.

PER CURIAM: 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 (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 
3

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.

* * * *

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 jury’s duty to consider the effects of the 

mitigating measure. The contested instruction read:

A “disability” exists only where an impairment

“substantially limits” a major life activity, not where it 

“might,” “could,” or “would” be substantially limiting if 
4

mitigating measures were not taken. A person whose 

physical or mental impairment is corrected by medication 

or other measures does not have an impairment that 

presently “substantially limits” a major life activity. To 

be sure, a person whose physical or mental impairment is 

corrected by mitigating measures still has an impairment, 

but if the impairment is corrected it does not 

“substantially limit” a major life activity.

Lee, 19 F. Supp. 3d at 289 (brackets omitted).

Lee objected to the instruction, on the ground that there 

was no evidence that he had been able to have all of his meals 

and snacks on one of the days on which he had allegedly 

fallen asleep and, therefore, the mitigating measure may not 

have been in effect at the time Lee claimed to have been 

disabled. The District Court Judge overruled the objection, 

holding that whether Lee was able to eat his meals was a jury 

question and that, depending on the jury’s answer to that 

question, the instruction might be relevant. See J.A. 827–28. 

The Judge then read the instruction to the jury.

The jury returned a verdict in the District’s favor, finding 

that Lee was not disabled within the meaning of the ADA. See

Lee, 19 F. Supp. 3d at 285. The jury reached no other 

questions. Lee passed away after the jury had returned its

verdict and the trial was concluded.

Coleman-Lee now appeals in Lee’s place, asking for a 

new trial. She argues that the District Court erred in granting 

the Sutton instruction because, regardless of whether Lee had 

been allowed to have his regular meals, “his eating regimen 

[itself] substantially limited his eating,” disabling him within 

the meaning of the ADA. Br. of Appellant 17. Therefore, she 

argues, the mitigating measures in this case were irrelevant to 
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the question whether Lee was disabled. We hold that, on the 

record before this court, Lee failed to raise this objection with 

the District Court. Therefore, our review of this objection is 

only for plain error, and we find none.

* * * *

Coleman-Lee’s theory on appeal is that the Sutton

instruction misled the jury because even if he was given the 

opportunity to eat his meals, Lee’s dietary requirements

themselves were substantial limitations on his ability to eat.

She argues that viewed through this lens – where the question 

is whether the meal plan substantially limited Lee’s eating –

the jury instruction was irrelevant to the case since there were 

no mitigating measures taken to alleviate the limitation on 

Lee’s eating. The mitigating measure in this case, she argues, 

was to mitigate the other effects of the diabetes, such as the 

possibility that Lee might uncontrollably fall asleep. As a 

result, she claims, the jury instruction should have been 

withheld because “there is no legal evidence of any kind to 

support the theory of fact” that Lee’s eating-related disability 

had been mitigated. Ins. Co. v. Baring, 87 U.S. (20 Wall.) 

159, 161 (1873).

We review this claim for plain error because Lee did not 

raise or preserve it below. The Federal Rules of Civil 

Procedure require that objections to jury instructions be 

timely made, “stating distinctly the matter objected to and the 

grounds for the objection.” FED. R. CIV. P. 51(c)(1). If a party 

later objects on different grounds, the court reviews only for 

plain error. Long v. Howard Univ., 550 F.3d 21, 25 (D.C. Cir. 

2008).

Coleman-Lee’s grounds for objection on appeal are 

different from those raised by Lee below. Below, as Coleman-
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Lee’s counsel conceded at oral argument, Lee’s objection to 

the mitigating measures instruction was based on his 

allegation that the District had not allowed Lee to follow his 

meal plan and mitigate his impairment. J.A. 829 (“[T]here is 

no evidence that [Lee] got all of his meals . . . . [T]here is no 

evidence that he got a break on duty and it is not noted in the 

log book.”). Lee’s counsel pointed the District Court to an 

earlier summary judgment ruling, in which the court had 

discussed whether the District had allowed Lee to eat all his 

meals. Id. at 827; see also Lee v. District of Columbia, 920 F. 

Supp. 2d 127, 134–35 (D.D.C. 2013) (denying summary 

judgment). The court summarized its understanding of the

objection, stating that “the whole issue [relevant to the 

instruction] is whether [Lee] had regular meals.” J.A. 827.

The District’s response in defense of the instruction was that 

“if the jury does find that he had his regular meals, [then] this 

instruction would be appropriate to consider.” Id. It is crystal 

clear that Lee’s objection below to the mitigating measures 

instruction was based on the argument that the mitigating 

measure may not have been in effect, and that the instruction 

may have suggested to the jury that it was in effect.

Coleman-Lee now makes a different argument, having 

nothing to do with whether Lee’s meal plan had been in 

effect. Instead, she argues that the jury instruction was 

erroneous whether or not Lee had his regular meals because

“his eating regimen [itself] substantially limited his eating.” 

Br. of Appellant 17. In other words, even “when adhering to 

his eating regimen [he was] still disabled because of the 

limitation on when he can eat.” Id. 18 (emphasis added). The 

District Court was not timely presented with the opportunity 

to consider whether it should reject the instruction on the 

ground that “there is no legal evidence of any kind to support 

the theory of fact” at the core of Coleman-Lee’s current 
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objection, because the “theory of fact” of the objection has 

changed since trial. See Ins. Co., 87 U.S. (20 Wall.) at 161.

Because Lee did not preserve below the argument now 

raised by Coleman-Lee, we review only for plain error. Long, 

550 F.3d at 25. Plain error review requires “(1) that there was 

an error, (2) that the error was clear or obvious, (3) that it 

affected the appellant’s substantial rights, and (4) that it 

seriously affected the fairness, integrity, or public reputation 

of the judicial proceedings.” EDWARDS, ELLIOTT, & LEVY,

FEDERAL STANDARDS OF REVIEW 86 (2d ed. 2013). ColemanLee offers nothing that suggests that her objection meets any 

of the prongs of this exacting standard.

* * * *

If the District Court’s instruction is assessed with an eye 

to the objection raised below by Lee, not the new theory 

raised by Coleman-Lee on appeal, then it is absolutely clear 

that no error was committed. In rejecting Lee’s objection, the 

District Court correctly concluded that there was evidence 

presented at trial that Lee could control his diabetes by eating 

three meals a day, plus snacks, and taking his medication. The 

jury had before it sufficient evidence to determine that Lee 

was allowed to eat his regular meals and snacks, and thus 

conclude that he did not have a disability under the Act. There

is no good reason to assume that the jury was misled by the 

Sutton instruction given by the District Court.

* * * *

There is one final matter that warrants mention, lest the 

thrust of this decision be misunderstood. No party has at any 

point challenged whether the disputed instruction correctly 

and fully explained the Sutton rule. Therefore, we neither pass 
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on this question nor suggest, by affirming, that the instruction 

given was a correct and complete explication of the rule. For 

the purposes of this appeal, we assume, as do the parties, the 

accuracy of the instruction. Based on that assumption, there 

was sufficient evidence in the record to support an instruction 

to the jury on its responsibility to weigh the effects of 

mitigating measures.

* * * *

For the reasons set forth above, we affirm the District 

Court’s judgment.

So ordered.