IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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. 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

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2013

Lyle W. Cayce

Clerk

* 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.

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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 disabilitybased 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

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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.

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