 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.
                              2
    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
                               5
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-
                               6
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
                               7
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). Coleman-
Lee 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
                               8
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.
