                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 8 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    THOMAS R. SCHURR,

                Plaintiff-Appellant,

    v.                                                   No. 98-6109
                                                   (D.C. No. CIV-97-129-M)
    OKLAHOMA DISABILITY LAW                              (W.D. Okla.)
    CENTER, INC.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Thomas R. Schurr appeals from a final judgment entered in favor of

Oklahoma Disability Law Center, Inc. (the Center) on his claims for damages

for failure to accommodate, disparate treatment, and wrongful termination. His

claims were brought pursuant to the American with Disabilities Act, 42 U.S.C.

§§ 12101-12213 (ADA); the Rehabilitation Act of 1973, as amended, 29 U.S.C.

§ 794(a); and the Oklahoma Anti-Discrimination Statute, Okla. Stat. tit. 25,

§ 1901 (OADS). Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse

and remand for new trial.

       After a three-day trial, a jury found in favor of the Center on all of Schurr’s

claims. The issue presented for this appeal is whether the district court properly

instructed the jury on the various claims, and, if not, whether the “jury might have

based its verdict on the erroneously given instruction.”   Coleman v. B-G

Maintenance Management of Colo., Inc.       , 108 F.3d 1199, 1202 (10th Cir. 1997)

(quotation omitted). “[W]e conduct a de novo review to determine whether, as

a whole, the instructions correctly stated the governing law and provided the jury

with an ample understanding of the issues and applicable standards.”      Allen v.

Minnstar, Inc. , 97 F.3d 1365, 1368 (10th Cir. 1996).

       Schurr claims that the court erred by (1) aggregating all of his claims in

Instructions No. 8 and No. 9 and instructing that it had to find for Schurr on all

three claims and all three statutes in order to find for Schurr; (2) instructing that


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intent is a required element of a failure to accommodate claim under the ADA and

OADS; (3) refusing to give Schurr’s proposed instructions that separated the

various claims under the statutes and failing to separately instruct on his claims of

disparate treatment and wrongful discharge; and (4) submitting a general verdict

form that required the jury to answer only one question with respect to liability

and did not provide a way for the jury to make separate findings on the individual

claims under each statute. We will address Schurr’s claims of error seriatim.

       Instruction No. 8, entitled “The Nature of Plaintiff’s Claim,” states the

following:

              It is unlawful for an employer to intentionally discriminate
       against a qualified individual with a disability because of that
       person’s disability. In this case, the plaintiff claims that the
       defendant intentionally discriminated against him because he had
       a disability. Specifically, plaintiff claims defendant discriminated
       against him by failing to reasonably accommodate his disability,
       by treating him differently than non-disabled workers, and by
       wrongfully terminating his employment. The defendant denies this
       charge. It is your responsibility to decide whether the plaintiff has
       proven his claim against the defendant by the greater weight of the
       evidence, as that term is defined in these instructions.

Appellant’s App. Vol. I, at 116. Instruction No. 9, entitled “American with

Disabilities Act,” states what the Act prohibits, states that Schurr claims the

Center violated the ADA, the Rehabilitation Act, and the OADS, and states that

a violation of the ADA is also a violation of the other two Acts.   See id. at 117.




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       The Center argues that Schurr waived any objection to this instruction in

the jury conference when, in response to the court’s question, “Do you have any

objection to the Instruction 8 that the Court is giving?,” Schurr’s attorney

answered, “No, that’s fine.” Appellant’s App. Vol. III, at 607. Schurr’s attorney

also did not voice an objection to the giving of Instruction No. 9.      See id. The

Federal Rules of Civil Procedure provide 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 of the objection.” Fed. R. Civ. P. 51. Although a preceding colloquy

between Schurr’s attorney in the court indicates that the court understood that

Schurr wanted instructions concerning the three separate claims,        see Appellant’s

App. Vol. III, at 607, Schurr’s acquiescence in the giving of these two

instructions waived his assignment of error on appeal. Accordingly, we review

only for plain error, i.e., where the instructions were “patently plainly erroneous

and prejudicial.”   Moe v. Avions Marcel Dassault-Breguet Aviation        , 727 F.2d 917,

924 (10th Cir. 1984). This review in civil cases is limited to those exceptional

situations in which the error “has seriously affected the fairness, integrity or

public reputation of judicial proceedings.”         Aspen Highlands Skiing Corp. v. Aspen

Skiing Co. , 738 F.2d 1509, 1516 (10th Cir. 1984) (quotation omitted). Schurr

admits that Instruction No. 8 “does nothing more than tell the jury that Schurr has


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alleged discrimination based on his disability,” and that Instruction No. 9 “does

nothing more to assist the jury in understanding the applicable law that they must

apply.” Appellant’s Opening Br. at 14. Because both instructions are only

general instructions; Instruction No. 8 does not instruct the jury on requisite

findings or the applicable law; and Instruction No. 9 is an accurate statement of

Schurr’s general claims and of the law, we cannot say that the giving of these

instructions was “patently plainly erroneous and prejudicial.”

       In his second claim of error, Schurr argues the court erroneously instructed

the jury in Instruction No. 10 that discriminatory intent is a requirement of

a failure to accommodate claim. His assertion is based on the use of the word

“intentional” in two sentences in the instruction: “Plaintiff claims that the

defendant intentionally discriminated against him by failing to accommodate his

disability. In order for plaintiff to establish his claim of intentional

discrimination by the defendant. . . .” Appellant’s App. Vol. I, at 118. The

instruction then lists four essential elements, none of which use the word

“intentional” or discuss requisite intent.   See id. We conclude that this instruction

does not require a finding of intent to discriminate in a failure to accommodate

claim and was not so misleading that the jury may have been confused on an

intent element.




                                             -5-
       In his third and fourth claims of error, Schurr maintains that the court erred

by refusing to give his proposed instructions on disparate treatment and wrongful

termination and special verdict form that separated the issues, by failing to

instruct the jury on the elements of those claims in any instruction, and by

submitting only a general verdict form to the jury. We review a court’s refusal to

give a particular requested instruction for abuse of discretion, but review         de novo

whether the instructions given, as a whole, correctly provided the jury with

instructions on the issues and an opportunity to determine those issues.          See Allen ,

97 F.3d at 1368.

       It is axiomatic that a party is entitled to an instruction based on its theory of

the case whenever it produces evidence to support it.        See Wilson v. Union Pac.

R.R. , 56 F.3d 1226, 1230 (10th Cir. 1995). The Center does not allege that the

evidence failed to support Schurr’s claims of disparate treatment or wrongful

termination; it simply argues that those theories were properly presented to the

jury in Instruction No. 2, which was a general “Statement of the Case,” and in

Instructions No. 8 and 9, discussed above.         See Appellee’s Br. at 13-14;

Appellant’s App. Vol. I, at 108-09. We disagree. A review of the submitted

instructions reveals that the jury was not instructed at all on the essential elements

of Schurr’s claims of disparate treatment and wrongful termination.           See

Appellant’s App., Vol. I, at 106-32. We further conclude that the instructions,


                                             -6-
read as a whole, mislead the jury by requiring Schurr to prove all three claims in

order to prevail against the Center. Further, the general verdict form did not

present the jury with an opportunity to make a finding on each specific claim as

envisioned by the federal rules of procedure.     See Fed. R. Civ. P. 49 (discussing

special verdicts and interrogatories). Having failed to properly instruct the jury

to Schurr’s prejudice, we hold that the district court abused its discretion in

refusing Schurr’s proposed instructions and special verdict form.

       The judgment of the United States District Court for the Western District

of Oklahoma is REVERSED and REMANDED for new trial.



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Circuit Judge




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