### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30584

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. Afte r b r i e f

i n g , oral arguments, and review of the relevant p arts of the record, we are convinced that the district court made n o r e v e r sible error in its U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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thorough and w e ll-considered opinions granting summary judgment on behalf of the J efferson Parish Public School Board and Drs. Kevin Bianchini a nd 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 m eet her threshold requirements. In particular, she has failed to show (1) that the physical ailments from which she suffered after a stude n t attacked her – neck pain and alleged Post Traumatic Stress Disorder – constitute “disabilities” a s that t e rm is defined under the ADA, (2) that being able t o teach in o ne specific location (namely, the classroom where she was attacked) is n ot “essential” to her profession, a finding she must prove in o rder 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 o f her disability. Whetstone’s remaining, n on-ADA claims – the i nt e ntional i nfliction of emotional distress, due p rocess violatio n s , an d di s ab ility based h arassment – are no t a d equately briefed. S he has, therefore, w aived these issues on appeal. See Matter of Texas Mortg. Services Corp. , 761 F.2d 1068, 1073 (5th Cir. 1985) (“Issues not raised or argued i n the brief of the appellant may be

co n s idered waived and thus will not be noticed or entertained by the court of appeals”) (internal quotation marks omitted); F E D
. R

. AP P
. P. 28(a)(9)(A) (“The appellant’s brief must contain

. . . [the] appellant’s contentions a nd the reasons for them, w ith c itations to the authorities and parts of the record on which the appellant relies.”). Whetstone’s c laims against Drs. Bi a n c h i ni a nd Ortenberg also fail. Although she brings an ADA discrimination claim a g a i n st each doctor, the claims are not c ognizable b ecause neither doctor was Whetstone’s employer or another kind of ADA “covered entity.” See 42 U.S.C. § 12111; see also , Satterfield

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v. T e nnessee , 295 F.3d 611, 618 (6th Cir. 2002) (on similar facts, physician was not a gent of plaintiff’s employer because d o c t o r did not h ave control o ver p laintiff’s employment nor did employer delegate such control to doctor). T h e doctors also cannot be sued f or due p r o c e s s v iolations, since both are private citizens, not s tate e nt i t i e s , thus n o state action is involved. See L ugar v. Edmonson Oil Co. , 457 U.S. 922, 924 (1982). Finally, the district court did not abuse its discretion in declining to exercise supplemental j u r i s d i ction o ver 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 c laims 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 s upplemental jurisdiction where defendants to whom dismissal was gra nted were belatedly added to the action and state law permitted other relief against them). For the reasons stated above, the judgment of th e d i s t rict c ourt is in all respects AFFIRMED.

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