* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 95-40233

____________

WAYNE W. LORE,

Plaintiff-Appellant,

versus

AMOCO OIL COMPANY,

Defendant-Appellee.

__________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(G-93-CV-724)

__________________________________________________

March 11, 1996

Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Wayne W. Lore appeals a judgment denying his claim

of discrimination under the Americans with Disabilities Act.

Finding no reversible error, we affirm.

I

Lore was employed as a carpenter by Amoco Oil Company

("Amoco") at its Texas City, Texas refinery. In 1992, Lore was

diagnosed as suffering from cutaneous lupus, a serious skin
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disorder that caused Lore to develop facial lesions and weeping

sores on his body. The disease is greatly exacerbated by exposure

to sunlight. As a result of this diagnosis, the company physician

issued a medical restriction that Lore avoid the sun as much as

possible, and wear a wide-brimmed hard hat and sun screen while

working outdoors. There were very few indoor jobs at the Texas

City refinery, and night shift work became available only during

the first quarter of each calendar year. Lore requested that Amoco

accommodate his disability by allowing him to work one of the

indoor shop positions. Amoco refused to place Lore in any of these

jobs because it would have necessitated reassigning one of the four

workers currently holding indoor shop positions, or creating a new

position for Lore. Eventually, Lore was notified that there was no

job available for someone with his restrictions. Lore filed suit

against Amoco, alleging that the company had discriminated against

him by refusing to accommodate his disability, in violation of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

Following a jury trial, a final judgment was entered against Lore.

Lore filed a timely notice of appeal.

III

Lore asserts that the district court erred in its charge to

the jury. We review jury instructions to determine whether they

fully and correctly state the law. Banc One Capital Partners Corp.

v. Kneipper, 67 F.3d 1187, 1192 (5th Cir. 1995). We do not

consider a challenged instruction in isolation, but rather as part
 

1 The district court instructed the jury that no compensatory or

punitive damages should be awarded if Amoco proved either (1) that it made a good

faith effort to identify and make a reasonable accommodation that would provide

Lore with an equally effective opportunity at the work place, or that (2) the

efforts at the reasonable accommodation would cause an undue hardship on the

operation of Amoco's business. In contrast, section 1981a of the ADA reads in

relevant part:

damages may not be awarded under this section where the covered

entity demonstrates good faith efforts, in consultation with the

person with the disability who has informed the covered entity that

the accommodation is needed, to identify and make a reasonable

accommodation that would provide such individual an equally

effective opportunity and would not cause an undue hardship on the

operation of the business.

42 U.S.C. § 1981a(a)(3) (emphasis added). The district court clearly erred by

changing the "and" into an "either/or" proposition.

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of the jury instructions as a whole. National Union Fire Ins. Co.

v. Cagle, 68 F.3d 905, 909 (5th Cir. 1995). Even if the jury

instruction was erroneous, retrial is not required if, based on the

entire record, the challenged instruction could not have affected

the outcome of the case. Banc One, 67 F.3d at 1193. We will

reverse only where the jury charge "as a whole leaves us with

substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations." Id. (internal quotation

marks omitted).

Lore correctly argues that the district court erred in

instructing the jury on Amoco's affirmative defense to compensatory

and punitive damages.1 Viewed as a whole, however, we find that

the jury instructions were unlikely to have confused or misled the

jury. In the liability portion of the jury instructions, the

district court correctly and clearly defined the requirements of

the ADA and Amoco's burden to provide "reasonable accommodation."

The district court gave the erroneous instruction on Amoco's
 

2 Lore's counsel proposed that the instruction on this issue should

read: "An employer is not required to create a new job or to bump another

employee from a job in order to provide reassignment as a reasonable

accommodation." Lore's counsel did not, however, explain to the district court

the significance or the legal grounds for these changes.

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affirmative defense only after the jury had been properly

instructed on the liability issue. The jury decided the question

on liability, and was therefore never required to reach Amoco's

affirmative defense to compensatory and punitive damages.

Accordingly, we conclude that the jury instructions as a whole do

not leave us with any substantial or ineradicable doubt as to

whether the jury was properly guided in its deliberations.

Lore next contends that the district court erred in

instructing the jury that reasonable accommodation "did not include

(a) creating a job or (b) bumping an employee out of a position to

create a vacancy." However, at trial, Lore only registered a

general objection and then offered an alternative, but

substantially similar, instruction.2 Because Lore failed to make

a specific objection to the district court's instruction, we find

that he has waived his right to object on appeal. FED. R. CIV. P.

51 ("No party may assign as error the giving or the failure to give

an instruction unless that party objects thereto . . . stating

distinctly the matter objected to and the grounds of the

objection."); Harrell v. DCS Equipment Leasing Corp., 951 F.2d

1453, 1462-63 (5th Cir. 1992) (holding that plaintiff's general

objection to jury instruction was insufficient to preserve alleged
 

3 We may thus review the alleged error only if "the error is so

fundamental as to result in a miscarriage of justice." Coastal Distributing Co.

v. NGK Spark Plug Co., 779 F.2d 1033, 1039 (5th Cir. 1986) (internal quotation

marks omitted). Having reviewed the record, we find there was no miscarriage of

justice. Lore's proposed jury instruction on "bumping" was substantially similar

to the one given by the district court. Furthermore, Lore's counsel explicitly

agreed with the district court's clarification to the jury during deliberations

that "bumping" could mean either "bumped from one position to another or bumped

to unemployment."

 

4 Because we find that the district court's jury instructions are

substantially correct, we also conclude that this alleged error did not result

in a miscarriage of justice. See Coastal Distributing Co., 779 F.2d at 1039.

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error for review).3

Finally, Lore contends that the district court erred by not

instructing the jury that an employer should consider modification

of the work schedule as a reasonable accommodation. However,

despite the district court's earlier refusal to give his proposed

instruction, Lore did not raise this issue during the formal charge

conference when told to state any objections he had to the jury

instructions. We therefore find that this last claim of error is

also waived.4

III

For the foregoing reasons, the district court's judgment

denying Lore's ADA claim is AFFIRMED.