REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-41007.
Danny L. RUSSELL, Plaintiff-Appellant,
v.
PLANO BANK & TRUST, Defendant-Appellee.
Dec. 19, 1997.
Appeal from the United States District Court for the Eastern
District of Texas.
Before KING and JONES, Circuit Judges, and WERLEIN,* District
Judge.
KING, Circuit Judge:
Plaintiff-appellant Danny L. Russell appeals the district
court's judgment, following a jury trial, in favor of
defendant-appellee Plano Bank & Trust. Russell claims that the
district court's jury instructions contained an incomplete
definition of the term "qualified individual with a disability"
within the meaning of the Americans with Disabilities Act, 42
U.S.C. §§ 12101-12213 (1994), which he argues was likely to have
misled the jury. He therefore contends that he is entitled to a
new trial. We affirm the judgment of the district court.
I. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff-appellant Danny L. Russell was employed by
defendant-appellee Plano Bank & Trust ("Plano Bank") from August
*
District Judge of the Southern District of Texas, sitting by
designation.
1
15, 1980, until his termination on October 31, 1993. Both parties
agree that Russell was a valuable employee who received several
promotions during his tenure at Plano Bank. In 1989, Russell
received a promotion to the position of Vice-President and Special
Asset Department Manager, and it is this position that he held at
the time of his termination.
On August 4, 1992, Russell was involved in a motor vehicle
accident that caused him to suffer neck, shoulder, and back
injuries, as well as a "concussion post-late effect, also known as
a brain injury." As a result of the accident, in September 1992
Russell began to experience "complex partial seizures." These
seizures caused Russell to experience symptoms which included
disorientation, muscle twitching in his extremities, blank staring,
sensitivity to sound and light, irritability, and rage. Several
weeks after the accident, Russell experienced one of these seizures
while at work.
As a result of the seizures, Russell sought medical attention,
and he was placed on disability leave while he underwent evaluation
and treatment. During the fall of 1992, Russell began a
rehabilitation program aimed at preparing him to return to work on
a part-time basis. On December 15, 1992, Russell, his wife, and
Dr. Richard Fulbright, Russell's treating neuropsychologist, met
with Jeff Chase, Plano Bank's Executive Vice-President and
Russell's supervisor, to discuss his condition and the possibility
of his return to work. The parties eventually agreed that Russell
could return to his job when he was capable of working for at least
2
four hours per day. Russell then enrolled in an intensive
rehabilitation program that focused on teaching him job-related
skills and allowed him to practice working on Plano Bank's own
files.
The rehabilitation program discharged Russell on July 7, 1993,
and he claims that as of that date he was ready and cleared by his
physicians to return to work for at least four hours per day.1 On
July 10, 1993, Russell, along with his wife and his rehabilitation
nurse, met with Chase and another Plano Bank representative. Chase
informed Russell that Plano Bank was planning to eliminate the
Special Assets Department and that he was therefore unsure whether
there was a place for Russell at the bank. On August 5, 1993,
Chase confirmed that he had been unable to find a position for
Russell, and he offered Russell a severance package conditioned on
Russell's signing a release of liability. In August 1993, Plano
Bank disbanded Russell's department. Russell refused to sign the
release that accompanied the severance package, and on October 26,
1993, he received a termination letter from Plano Bank stating that
he was terminated as of October 31, 1993.
On May 19, 1995, Russell filed suit against Plano Bank
claiming that it had violated the Americans with Disabilities Act
("ADA"), 42 U.S.C. §§ 12101-12213 (1994), by failing to reasonably
accommodate him and by ultimately terminating his employment.
1
Plano Bank disputes this assertion, claiming that Russell's
physicians never gave him a full release to return to work and that
Plano Bank's policy required such a release before it could allow
him to return.
3
After a three-day trial, the jury returned a verdict finding that
Russell was not a qualified individual with a disability. The
district court therefore entered a judgment that Russell take
nothing on his claims, and Russell timely appealed.
II. DISCUSSION
A. The Jury Instructions
Russell argues that the district court's jury instruction
contained an erroneous definition of the term "qualified individual
with a disability" within the meaning of the ADA which is likely to
have misled the jury. He therefore argues that he is entitled to
a new trial. At trial, Russell submitted a proposed jury
instruction to the district court which read, in part, as follows:
The term "qualified individual with a disability", as
used in these instructions, means an individual with a
disability who can perform the essential functions of the
employment position at issue, with or without reasonable
accommodation.
The definition that the court ultimately gave to the jury
read, in part, as follows:
The phrase "qualified individual with a disability", as
used in these instructions, means an individual with a
disability who can perform the essential functions of the
employment position which the Plaintiff holds or for which the
Plaintiff has applied.
The next page of the instructions contained an explanation of the
term "essential functions" which included the following statement:
If a disabled employee is not able to perform the
essential functions of his position, with or without
reasonable accommodations, as that term is defined in these
instructions, the employee can lawfully be terminated and the
employer is not required to assign him to alternative
employment.
Two pages later, the jury instructions defined "reasonably
4
accommodate" as follows:
The term "reasonably accommodate" means any effective
modification or adjustment to the workplace that makes it
possible for a person with a disability to perform the
essential functions of their employment position or to enjoy
the same benefits and privileges of employment that are
available to any person without a disability.
The Verdict of the Jury included a total of seven
interrogatories. Interrogatory Number 1 read as follows: "Do you
find from a preponderance of the evidence that Danny L. Russell was
a qualified individual with a disability?" Because the jury
responded negatively to this question, they did not reach any of
the other interrogatories.
Russell argues that he was prejudiced by the form of the jury
instructions because the words "with or without reasonable
accommodation" were omitted from the definition of qualified
individual with a disability. He contends that in answering
Interrogatory Number 1, the jury would tend to focus on the
specific definition of qualified individual with a disability and
was therefore likely to ignore the discussion of reasonable
accommodation which appeared in a later part of the jury
instructions. In support of his argument, Russell points to the
ADA's own definition of qualified individual with a disability,
which reads as follows:
The term "qualified individual with a disability" means
an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires.
42 U.S.C. § 12111(8) (1994). Russell contends that the reasonable
accommodation requirement is the "heart and soul" of the ADA, and
5
he therefore argues that the district court's failure to mention
reasonable accommodation in its definition of qualified individual
with a disability created ineradicable doubt as to whether the jury
was properly guided in its deliberations.
In response, Plano Bank first argues that because Russell
failed to preserve his objection to the jury instructions, this
court's consideration of his appeal is limited to plain error
review. Second, Plano Bank notes that although Russell cited to §
104A.04 of the treatise Federal Jury Practice and Instructions as
support for his proffered instruction, the language in that book is
exactly the same as the language used by the district court in its
definition of qualified individual with a disability. Finally,
Plano Bank contends that there was no reasonable accommodation that
would have permitted Russell to fulfill the essential functions of
his job because (1) the accommodations that Russell requested were
not reasonable, and (2) even if the requested accommodations were
implemented, Russell was still not qualified for the position he
sought due to his mental limitations.
B. Standard of Review
Where a party argues on appeal that the district court erred
in refusing to give a proffered jury instruction, that party must
"show as a threshold matter that the proposed instruction correctly
stated the law." Federal Deposit Ins. Corp. v. Mijalis, 15 F.3d
1314, 1318 (5th Cir.1994). As Russell's proffered instruction
tracked the language of the ADA, there is no question that it was
a correct statement of the law.
6
Once that threshold is met, we generally apply a two-part
test in considering a challenge to the district court's jury
instructions. The party challenging the instructions must first
"demonstrate that the charge as a whole creates "substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations.' " Id. (quoting Bender v. Brumley, 1 F.3d 271, 276
(5th Cir.1993)). Second, even where a jury instruction was
erroneous, "we will not reverse if we determine, based upon the
entire record, that the challenged instruction could not have
affected the outcome of the case." Id. Moreover, in determining
whether the instruction was erroneous, we accord substantial
deference to the decisions of the district court. Id. at 1319.
A prerequisite to our review of the instructions in this
manner, however, is that the objection must have been brought to
the attention of the district court at trial. 9A CHARLES ALAN WRIGHT,
ET AL., FEDERAL PRACTICE AND PROCEDURE § 2553 (2d ed. 1995) ("In the
absence of a properly specific objection under Rule 51 made before
the jury retires, a party ordinarily cannot claim on appeal that
the trial court erred in the giving of an erroneous instruction or
the failure to give a requested instruction." (footnotes omitted)).
In order to raise the issue before the district court in the
proper manner, the complaining party must comply with Federal Rule
of Civil Procedure 51, which states that "[n]o party may assign as
error the giving or the failure to give an instruction unless that
party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter objected to and the grounds
7
of the objection." FED.R.CIV.P. 51. In the instant case, Russell
submitted a proposed jury instruction that the district court
rejected. A party may not satisfy the requirements of Rule 51 by
merely submitting to the court a proposed instruction that differs
from the instruction ultimately given to the jury. See Kelly v.
Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir.1995).
Moreover, "parties are not entitled to have the jury instructed in
the precise language or form they suggest." Wilson v. Zapata Off-
Shore Co., 939 F.2d 260, 270 (5th Cir.1991).
In addition to submitting his own instructions, however,
Russell's attorney objected to the district court's instructions,
stating "can we just have an objection that to the extent that the
Plaintiff's requested instructions were not given, we would object
on that ground." The court responded, "[t]he objections will be
overruled. And the Court will state for the record to the extent
the requested instructions of the Plaintiff are not substantially
covered—given in the Court's charge, they are refused." In
addition, Russell's attorney specifically objected to a portion of
the instructions dealing with good faith and undue hardship, but he
made no specific reference to the omission of the words "with or
without reasonable accommodation" from the definition of qualified
individual with a disability.
We have repeatedly held that a general objection to the
district court's jury instructions is insufficient to satisfy Rule
51. See, e.g., Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266,
1272 (5th Cir.1989) (finding appellants' objection "to the extent
8
any charge [they] requested was not given by the Court" to be
insufficient to "inform the trial court of a perceived problem");
Tandy Brands, Inc. v. Harper, 760 F.2d 648, 654 (5th Cir.1985)
(finding that appellant's purported objection did "not satisfy Rule
51's requirement that a party state "distinctly the matter to which
he objects and the grounds of his objection' " and was not "
"sufficiently specific to bring into focus the precise nature of
the alleged error' " (quoting Delancey v. Motichek Towing Serv.,
Inc., 427 F.2d 897, 900 (5th Cir.1970))); Williams v. Hoyt, 556
F.2d 1336, 1340 (5th Cir.1977) ("The sweeping generalization that
the court's charge to the jury was "fundamentally wrong' and "not
a fair statement of the law' does not require extended discussion.
Appellants failed to object to the court's instructions.").
Russell's objection was not specific enough to apprise the district
court of his particular problem with the challenged instruction,
and it therefore failed to satisfy the requirements of Rule 51.
A party may be excused from the requirement of making a
specific objection only where "the party's position previously has
been made clear to the trial judge and it is plain that a further
objection would be unavailing." 9A WRIGHT ET AL., supra, § 2553.
"Only when the appellate court is sure that the trial court was
adequately informed as to a litigant's contentions may the
appellate court reverse on the basis of jury instructions to which
there was no formal objection." Industrial Dev. Bd. of the Town of
Section, Alabama v. Fuqua Indus., Inc., 523 F.2d 1226, 1238 (5th
Cir.1975). For example, in Pierce v. Ramsey Winch Co., 753 F.2d
9
416 (5th Cir.1985), this court found that the defendant adequately
preserved its objections to the jury instruction by making a
general objection to the court's failure to include its requested
instructions and by including in the record (1) its proposed
instructions that the court had rejected and (2) a memorandum
setting forth its position regarding its proposed instructions.
Id. at 424. In that case, the fact that the objecting party's
specific disagreements with the jury instructions were included in
the record assured us that the trial court was fully aware of the
substance of the objections, and we therefore concluded that the
purpose of Rule 51 had been served. See id. In contrast, in the
instant case, there is no evidence in the record that Russell's
position regarding the omission of the words "with or without
reasonable accommodation" from the paragraph defining qualified
individual with a disability was made clear to the trial judge.2
2
At oral argument and in his Reply Brief, Russell's attorney
claimed that he explained his specific objection to the instruction
at issue to the district court in an off-the-record conference.
Russell relies on the Seventh Circuit's decision in Niehus v.
Liberio, 973 F.2d 526 (7th Cir.1992), to support his argument that
the objection need not be stated in the record so long as the trial
court has been made aware of it. The Niehus court noted that
nothing in the text of Rule 51 requires that the
objection be stated on the record; and the main purpose
of the rule—to give the judge a chance to correct an
error that might require a reversal and new trial—does
not require that the objection be recorded.
Id. at 529 (citations omitted).
Russell's reliance on Niehus is misplaced. In Niehus,
the court based its decision, at least in part, on the fact
that "[t]he uncontradicted affidavit by the defendants' lawyer
... establishe[d] that there was no violation of Rule 51."
Id. at 530. We do not think that a party's failure to make a
10
Where the party challenging the district court's instructions
has failed to raise the objection before the district court and his
position has not been made clear to the court in some other manner,
our consideration of the issue is limited to plain error review.
Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027,
1031-32 (5th Cir.1994). In order for an appellant to prevail under
this level of scrutiny he must show: "(1) that an error occurred;
formal, on-the-record objection or to state clearly the grounds for
their objection, as required by Rule 51, may be remedied by the
submission of an affidavit stating that the objection was made.
Moreover, the holding in Niehus conflicts with the settled law of
this circuit; we have held that
[t]he procedure of holding off-the-record charge
conferences and failing to reflect what transpired is, we
think, in clear violation of the spirit of Fed.R.Civ.P.
51.... Obviously, we cannot consider off-the-record
objections to jury instructions not subsequently made
part of the record....
King v. Ford Motor Co., 597 F.2d 436, 440 n. 3 (5th Cir.1979).
Indeed, this circuit has never approved of off-the-record
objections as a method of satisfying the requirements of Rule
51. Cf. Bolton, 871 F.2d at 1272 (finding that raising an
objection at an informal conference with the trial judge's law
clerk was insufficient to preserve the objection where the
conference was not on the record); Burns v. Travelers Ins.
Co., 344 F.2d 70, 73 (5th Cir.1965) ("If the proper objection
does not appear in the record, then the appellate court need
not consider the alleged error."). Finally, we note that we
are not alone in our strict application of Rule 51; other
circuits enforce the requirement that the specific grounds of
the objection be clear from the record. See, e.g., Dupre v.
Fru-Con Eng'g, Inc., 112 F.3d 329, 334 (8th Cir.1997)
(rejecting Niehus 's reasoning and holding that "to preserve
an argument concerning a jury instruction for appellate
review, a party must state distinctly the matter objected to
and the grounds for the objection on the record"); Coy v.
Simpson Marine Safety Equip., Inc., 787 F.2d 19, 25 (1st
Cir.1985) (reviewing jury instructions only for plain error
where the specific grounds of the objections "were not stated
for the record after delivery of the charge to the jury and no
transcript of a conference held in chambers prior to the
charge is available").
11
(2) that the error was plain, which means clear or obvious; (3)
the plain error must affect substantial rights; and (4) not
correcting the error would "seriously affect the fairness,
integrity, or public reputation of judicial proceedings.' " Id. at
1032 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct.
1770, 1778-79, 123 L.Ed.2d 508 (1993), and holding that " "[t]he
principles and decision enunciated in Olano apply a fortiori in the
civil context' " (quoting Smith v. Gulf Oil Co., 995 F.2d 638, 646
(6th Cir.1993))).
C. Application of the Plain Error Standard to Russell's Claim
As Russell failed to satisfy the requirements of Rule 51, we
review the district court's jury instructions only for plain error.
At the outset, Russell must prove that an error occurred. In
determining whether a particular jury instruction was erroneous, we
consider the jury charge as a whole. Turnage v. General Elec. Co.,
953 F.2d 206, 211-12 (5th Cir.1992) ("An inadequate instruction
merits reversal when "the charge as a whole leaves us with the
substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations'." (quoting Bommarito v.
Penrod Drilling Corp., 929 F.2d 186, 189 (5th Cir.1991))); 9A
WRIGHT, ET AL., supra, § 2558 ("In determining whether the charge is
erroneous, the charge must be considered as a whole by the
appellate court."). Viewed in their entirety, the jury
instructions in this case were not erroneous. Although the words
"with or without reasonable accommodation" were omitted from the
paragraph about which Russell complains, the jury instructions
12
mentioned reasonable accommodation numerous times. Specifically,
the explanation of essential functions included a reference to
reasonable accommodation, and the term "reasonably accommodate" was
explicitly defined shortly thereafter.
Russell claims, however, that the fact that Interrogatory
Number 1 directed the jury to consider only whether Russell was a
qualified individual with a disability means that it is likely that
the jury failed to consider Plano Bank's duty to reasonably
accommodate him because that was not mentioned in the definition of
qualified individual with a disability. We disagree. "Juries are
presumed to follow the instructions of the court." United States
v. Fletcher, 121 F.3d 187, 197 (5th Cir.1997) (citing Zafiro v.
United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 938-39, 122
L.Ed.2d 317 (1993)). The district court's instructions
specifically admonished the jurors that they were "not to single
out one instruction alone as stating the law, but must consider the
instructions as a whole." Absent any indication that the jury was
confused by or failed to follow the district court's instructions,
we cannot say that the omission of the words "with or without
reasonable accommodation" from the paragraph at issue constituted
error.
Even assuming, however, that it was error for the district
court to omit the language at issue from the definition, the
requirements of plain error are exacting and the plain error
exception is a narrow one that applies only where " "the error is
so fundamental as to result in a miscarriage of justice.' "
13
Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 424 (5th
Cir.1990) (quoting Sandidge v. Salen Offshore Drilling Co., 764
F.2d 252, 262 (5th Cir.1985)); see also 9A WRIGHT ET AL., supra, §
2558 ("If there is to be a plain error exception to Rule 51 at all,
it should be confined to the exceptional case when the error
seriously has affected the fairness, integrity, or public
reputation of the trial court's proceedings."). Moreover, in
considering the requirements of plain error after the Supreme
Court's decision in Olano, we have stated that
Olano 's requirement of an "obvious" error is stringent.
The Court said that "at a minimum" an alleged error must be
"clear under current law." United States v. Frady [456 U.S.
152, 102 S.Ct. 1584, 71 L.Ed.2d 816], an opinion cited by
Olano, required error so clear that "the trial judge and
prosecutor were derelict in countenancing it, even absent the
defendant's timely assistance in detecting it." It is the
unusual case that will present such an error.
Highlands Ins. Co., 27 F.3d at 1032 (footnotes omitted).
Russell has presented no evidence that the alleged error was
"clear under current law." Id. In fact, in his own proposed jury
instructions Russell cited to the very treatise that contains the
pattern jury instruction about which he now complains. See 3 HON.
EDWARD J. DEVITT ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 104A.04 (4th
ed. Supp.1997). Further, this court has found no cases, in this
circuit or in any other, that criticize the pattern jury
instruction used by the district court to define qualified
individual with a disability. As a result, we cannot conclude that
the district court's error, if any, was clear under current law.
Thus, while in retrospect a definition of qualified individual with
a disability that included the words "with or without reasonable
14
accommodation" may have been preferable, we cannot say that it was
plain error for the district court to fail to include such language
in a particular paragraph of a twenty-seven page jury instruction
which fully explained reasonable accommodation in later paragraphs
and admonished the jury to consider the instructions as a whole in
deciding on a verdict.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
15
Russell v. Plano Bank & Trust
Combined Opinion