UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40565 Summary Calendar

THERAPY CORPORATION OF AMERICA; DONNA CARROLL, President of Therapy Corporation of North America; DANIEL CARROLL,

Plaintiffs-Appellants,

versus

CITY OF TEXARKANA, TEXAS; ET AL,

Defendants,

CITY OF TEXARKANA, TEXAS; NANCY TALLEY, Council Member; VAN ALEXANDER, Council Member; BRADLEY HARDIN, Council Member; TOM ARNOLD, City Attorney,

Defendants-Appellees.

________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (5:00-CV-336) ________________________________________________________________ February 24, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiffs appeal the district court’s denial of their FED. R.

CIV. P. 59 motion for a new trial. They contend that the court

erroneously instructed the jury at trial that the disability of

Plaintiffs’ potential residents must have been the sole motivating

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. factor behind Defendants’ decision to deny Plaintiffs zoning

permits. Defendants move to dismiss the individually named

defendants from this appeal. Finding no plain error, we AFFIRM.

I.

Plaintiffs planned to open a drug treatment facility for

teenage girls in Texarkana. On two occasions, the Texarkana City

Council denied special zoning permits that would have allowed such

a center to operate. Plaintiffs filed a complaint, alleging

violations of the Fair Housing Act,

(a)(3), et seq.

(FHA), the Americans with Disabilities Act,

, et

seq. (ADA), and the Rehabilitation Act of 1973,

, et

seq.

Both parties agreed to consolidate the three claims into one

jury instruction. The court instructed the jury that, for all

Plaintiffs’ claims, discrimination on the basis of potential

residents’ disability must have been the “sole motivating factor”

for Defendants’ action. Plaintiffs made a general objection that

the proper standard for all three claims was not that the

discrimination was the “sole motivating factor”.

Ultimately, the jury returned a verdict in favor of the

defendants. Plaintiffs timely moved for a new trial pursuant to

Rule 59. They contended, inter alia, that the “sole motivating

factor” instruction, although proper for the Rehabilitation Act

claim, was improper for the ADA and FHA claims. The district court

2 denied this motion because Plaintiffs had failed to preserve the

issue of the erroneous jury instruction by making a specific

objection at trial.

II.

We review the denial of a Rule 59 motion for a new trial for

abuse of discretion. Stokes v. Emerson Electric Co.,

(5th Cir. 2000). Challenged jury instructions are reviewed to

determine whether the instructions, as a whole, constitute a

correct statement of the principles of law applicable to the facts

in the case.

However, when the jury instruction issue is not

preserved at trial, we review it only for plain error. Hartsell v.

Dr. Pepper Bottling Co. of Texas,

(5th Cir.

2000). “In the civil context, a jury instruction is plainly

erroneous when (1) an error occurred, (2) the error was clear or

obvious, (3) substantial rights were affected, and (4) not

correcting the error would seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” Texas

Beef Group v. Winfrey,

(5th Cir. 2000)(internal

quotations omitted).

Regarding erroneous jury instructions, FED. R. CIV. P. 51

requires a party to state “distinctly [to the court] the matter

objected to and the grounds for objection”. Failure to object

specifically and failure to offer a proposed instruction on the

3 disputed issue fails to preserve the issue. Texas Beef Group,

.

Plaintiffs contend their general objection to the “sole

motivating factor” instruction, along with their alternative “one

motivating factor” instruction, is sufficient to preserve the

issue. They admit their proposed instruction would have been

improper for their Rehabilitation Act claim, which requires the

discrimination to be the sole motivating factor for the act.

; see also, Soledad v. United States Dept. of Treasury,

(5th Cir. 2002). Moreover, this court has held

that, for ADA claims, the “sole motivating factor” standard is

proper. Turco v. Hoechst Celanese Corp.,

(5th

Cir. 1997) (citing Rizzo v. Children’s World Learning Centers,

Inc.,

(5th Cir. 1996); but see, Soledad,

(“Under the ADA, ‘discrimination need not be the sole

reason for the adverse employment decision, [but] must actually

play a role in the employer’s decision making process and have a

determinative influence on the outcome’.”)(dictum) (quoting Ahrens

v. Perot Sys. Corp.,

(5th Cir.), cert. denied,

(2000) (dictum)). It is clear that, for at least the

Rehabilitation Act claim, Plaintiffs’ proposed instruction would

have been improper; the court did not err by refusing to adopt it.

See, e.g., Russell v. Plano Bank & Trust,

(5th

Cir. 1997), cert. denied,

(1998) (courts do not err

4 by refusing to give proffered instruction when that instruction did

not correctly state the law).

Plaintiffs also admit that they did not bring to the court’s

attention any differences in the causation standards for the three

claims, and, instead, continued to treat the three claims as one

throughout the trial. The district court concluded:

Plaintiffs’ continuing reliance on a single jury instruction, an instruction that Plaintiffs first admitted was incorrect only at the [Rule 59] hearing ..., demonstrates that Plaintiffs did not make objections to the jury instruction specific enough to preserve error.

Because they did not object specifically to the instructions

for their ADA and FHA claims, we review the jury instructions for

plain error. As noted, the court did not clearly err in giving the

“sole motivating factor” instruction with regard to the ADA claim.

See Rizzo,

.

Regarding the standard under the FHA, this court has held that

“[t]he protected trait must only be ‘one significant factor’ in the

challenged decision to violate the FHA”. Simms v. First Gibraltar

Bank,

, 1556 n. 30 (5th Cir.), cert. denied, Simms v.

First Madison Bank,

(1996) (quoting Wood-Drake v.

Lundy,

(5th Cir. 1982). Defendants urge that

those FHA cases involved age and race discrimination, not

discrimination on the basis of handicap. Moreover, they contend

the “handicap” classification in the FHA,

(h), is

identical to the ADA classification of an “individual with a

5 disability”,

. Therefore, they contend, the

standard for FHA “handicap” claims should be the same as ADA

“disabled” claims.

All parties agree that, since the FHA was amended in 1988,

this court has issued no opinion in which it analyzed the correct

standard to be applied to FHA discrimination claims based on

handicap. Even if Plaintiffs’ contention that the standard for an

FHA “handicap” claim should be the same as an age or race claim,

any error made by the district court was not “clear” or “obvious”.

See, e.g., Texas Beef Group,

.

AFFIRMED; MOTION TO DISMISS PARTIES DENIED AS MOOT

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