     Case: 12-30584       Document: 00512278809         Page: 1     Date Filed: 06/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 18, 2013

                                       No. 12-30584                        Lyle W. Cayce
                                                                                Clerk

JOYCE WHETSTONE,


                                                  Plaintiff - Appellant

v.

JEFFERSON PARISH PUBLIC SCHOOL BOARD; KEVIN J. BIANCHINI,
PhD; KAREN ORTENBERG,


                                                  Defendants - Appellees




              Appeals from the United States District Court for the
                         Eastern District of Louisiana
                            USDC No. 2:07-CV-9704


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       The judgment of the district court is affirmed for the reasons given by that
court. After briefing, oral arguments, and review of the relevant parts of the
record, we are convinced that the district court made no reversible error in its


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-30584     Document: 00512278809       Page: 2   Date Filed: 06/18/2013



                                   No. 12-30584

thorough and well-considered opinions granting summary judgment on behalf
of the Jefferson Parish Public School Board and Drs. Kevin Bianchini and Karen
Ortenberg.
      In order to bring a claim under the Americans with Disabilities Act (ADA),
a plaintiff such as Ms. Whetstone must first satisfy certain prima facie elements
of discrimination. Whetstone has failed to meet her threshold requirements. In
particular, she has failed to show (1) that the physical ailments from which she
suffered after a student attacked her – neck pain and alleged Post Traumatic
Stress Disorder – constitute “disabilities” as that term is defined under the ADA,
(2) that being able to teach in one specific location (namely, the classroom where
she was attacked) is not “essential” to her profession, a finding she must prove
in order to be considered a “qualified individual” under the ADA, and (3) that the
external manifestations of her injury – neck soreness, coupled with erratic
behavior characterized by fear and general agitation – were enough to put the
school on notice of her disability. Whetstone’s remaining, non-ADA claims – the
intentional infliction of emotional distress, due process violations, and disability-
based harassment – are not adequately briefed. She has, therefore, waived these
issues on appeal. See Matter of Texas Mortg. Services Corp., 761 F.2d 1068, 1073
(5th Cir. 1985) (“Issues not raised or argued in the brief of the appellant may be
considered waived and thus will not be noticed or entertained by the court of
appeals”) (internal quotation marks omitted); FED. R. APP. P. 28(a)(9)(A) (“The
appellant’s brief must contain . . . [the] appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
appellant relies.”).
      Whetstone’s claims against Drs. Bianchini and Ortenberg also fail.
Although she brings an ADA discrimination claim against each doctor, the
claims are not cognizable because neither doctor was Whetstone’s employer or
another kind of ADA “covered entity.” See 42 U.S.C. § 12111; see also, Satterfield

                                         2
    Case: 12-30584     Document: 00512278809      Page: 3   Date Filed: 06/18/2013



                                  No. 12-30584

v. Tennessee, 295 F.3d 611, 618 (6th Cir. 2002) (on similar facts, physician was
not agent of plaintiff’s employer because doctor did not have control over
plaintiff’s employment nor did employer delegate such control to doctor). The
doctors also cannot be sued for due process violations, since both are private
citizens, not state entities, thus no state action is involved. See Lugar v.
Edmonson Oil Co., 457 U.S. 922, 924 (1982). Finally, the district court did not
abuse its discretion in declining to exercise supplemental jurisdiction over
Whetstone’s state law claims against the doctors. See 28 U.S.C. § 1367(c)(3)
(supplemental jurisdiction is discretionary and a court may decline to exercise
it when it “has dismissed all claims over which it has original jurisdiction”); see
also, Miller v. Griffin-Alexander Drilling Co., 873 F.2d 809, 814 (5th Cir. 1989)
(court refuses to exercise supplemental jurisdiction where defendants to whom
dismissal was granted were belatedly added to the action and state law
permitted other relief against them).
      For the reasons stated above, the judgment of the district court is in all
respects
                                                                     AFFIRMED.




                                        3
