1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-31169

Summary Calendar

JAMES M. ROBERTSON, M.D. and VICTORIA ROBERTSON,

Plaintiffs-Appellants-Cross-Appellees,

VERSUS

THE NEUROMEDICAL CENTER, THOMAS B. FLYNN, JOHN R. CLIFFORD,

ANTHONY S. IOPPOLO, ALLEN S. JOSEPH, THOMAS P. PERONE, L. ALLEN

PROCTOR, OSCAR L. ROGERS, III, CAROLYN C. BAKER, SUSAN L.

SCARBERRY, and BARBARA J. GOLDEN,

Defendants-Appellees-Cross-Appellants.

Appeals from the United States District Court

for the Middle District of Louisiana

December 3, 1998

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:

Plaintiffs-Appellants (“the Robertsons”) sued the DefendantsAppellees, (collectively, “the NMC”) under the Americ a ns with

Disabilities Act of 1990 (“the ADA”), as well as other state-law

claims, alleging that the NMC had discriminated against Dr.

Robertson in firing him. Robertson claims that the NMC failed to

make reasonable accommodations for his Attention Deficit2

Hyperactivity Disorder (“ADHD”). The district court entered

summary judgment in favor of the defendants on the claims under the

ADA, but remanded the Robertsons ’ state-law claims, including a

claim under the Louisianians with Disabilities Act (“the LDA”),

back to state court for further proceedings. The Robertsons now

appeal from the grant of summary judgment, and the NMC appeals from

the remand of the state-law claims. For the following reasons, we

affirm.

I. Background and Procedural History

Plaintiff, Dr. James Robertson, had been a neurologist at the

NMC in Baton Rouge since 1981. He was a shareholder in the NMC

Corporation and was working under an employment contract until the

time of his termination. In May 1994, at the suggestion of one of

his colleagues, Robertson was tested and diagnosed with ADHD.

Approximately four months later, he was terminated from his

employment with the NMC. Robertson contends that he was wrongfully

disc harged because of his diagnoses of ADHD and that reasonable

accommoda tions were recommended, but never implemented. The NMC

contends that certain of Robertson’s work-related problems predated

his diagnosis of ADHD, and that those problems resulted in his

termination “for cause” as provided in his employment contract.

Originally file d in Louisiana state court, the Robertsons

filed suit against the NMC and various individual doctors alleging

violations of the ADA as well as a similar claim under the LDA and

other state-law causes of action. Later, the NMC removed the case3

to federal court on the basis of the ADA claim. Upon a motion

filed by the NMC, the court granted summary judgment on the ADA

claim, finding that no genuine issue of material fact existed on

whether Dr. Robertson was a “qualified individual” able to recover

under the ADA. Declining to exercise supplemental jurisdiction

over the remainin g state-law claims, the district court remanded

them back to state court for further proceedings.

II. Discussion

After reviewing the record before us and the applicable law,

we conclude that the district court’s grant of summary judgment on

behalf of the NMC should be affirmed.

In reviewing the district court’s grant of summary judgment,

questions of fact are viewed in the light most favorable to the

non-movant and questions of law are reviewed de novo. S ee Deas v.

River West, L.P.

, 152 F.3d 471, 475 (5th Cir. 1998). As this court

has stated in Hypes v. First Commerce Corp.

, “[i]f plaintiff lacks

evidence sufficient to create a genuine issue of fact in support of

a necessary element of a claim or claims, then summary judgment is

appropriate against plaintiff on that claim.” 134 F.3d 721, 725

(5th Cir. 1998)(citing F ED

. R. C IV

. P. 56(c)).

Title I of the ADA provides that “[n]o covered entity shall

disc r iminate against a qualified individual with a disability

because of the disability of such individual in regard to

. . .

discharge of employees

. . . and other terms, conditions, and4

privileges of employment.” 42 U.S.C. § 12112(a)(1994). To

establish a prima facie case of discriminatory firing, a plaintiff

must prove: (1) he has a “disability;” (2) he is a “qualified

individual” for the job in question; and (3) an adverse employment

decision was made because of his disability

. See i d. ; H amilton v.

Southwestern Bell Telephone Co.

, 136 F.3d 1047, 1049 (5th Cir.

1998).

A. Was Dr. Robertson a “Qualified Individual” Under the ADA?

The basis on which the district court granted summary judgment

in this case was because the plaintiffs, as a matter of law, could

not prove that Dr. Robertson was a “qualified individual” with a

disability--that is, one who can perform the essential functions of

his job with or without reasonable accommodations. See 42 U.S.C.

§12111(8). Dr. Robertson contends that either the administrative

portions of his job were not “essential functions” as defined under

the Act, or even if they were, he would have been able to perform

them with the aid of reasonable accommodations.

Aft er a review of the record, we conclude that the

“administrative portion” of Dr. Robertson’s job is unquestionably

one of its essential func tions. Contrary to the Robertson’s

blatant attempt to minimize its importance, we believe: (1) that

the administrative portion of Dr. Robertson’s job is one of the

major reasons why his position existed in the first place; (2) that

Dr. Robertson, as a neurologist was one of the few employees at the1 The Code of Federal Regulations provides that,

(2) A job function may be considered essential for any of

several reasons, including but not limited to the following:

(i)

. . . because the reason the position exists is to

perform that function;

(ii ) . . . because of the limited number of employees

available a mong whom the performance of that job function

can be distributed; and/or

(iii) the function may be highly specialized so that the

incumbent in the position is hired for his or her expertise

or ability to perform that particular function.

29 C.F.R. § 1630.2(n)(2).

5 NMC to whom those administrative d uties could have been

distributed; and (3) that the highly specialized adm inistrative

portion of the job could not be transferred to someone without

expertise in that area without destroying the utility of the job

altogether. 1 Indeed, Dr. Robertson’s own definition of a

neurologist stated that studying and analyzing tests and blood work

were part of what defined the job. Accordingly, we agree with the

district court’s determination that no factual dispute exists as to

the essential functions of Dr. Robertson’s job.

Next, we must address whether Dr. Robertson could perform this

essential part of his job with the aid of “reasonable

accommodations.” In support of his argument, Dr. Robertson has

proposed, among other things, either a part time position, no call

duty, that he be allowed to treat his ADHD with medication, or that

a clerical assistant could be hired to oversee his administrative

duties.

We agree with the district court’s conclusion that

“[c]onsidering the limitations on plaintiff’s abilities caused by6

ADHD, the type of work he is engaged in, the interests of NMC in

running its b usiness, and most importantly, the safety of the

patients at NMC

. . . plaintiff cannot establish a prima facie case

that he could continue in his position as a neurologist because

accommodation is not possible in these circumstances.” Order and

Reasons, October 9, 1997, at 32.

First, the ADA does not require an employer to relieve the

employee of any essential functions of the job, modify the actual

duties, or reassign existing employees or hire new employees to

perform those duties. As this court has stated in describing what

is required of an employer for accommodation purposes, “the law

does not require an employer to transfer from the disabled employee

any of the essential funct ions of his job.” B arber v. Nabors

Drilling U.S.A., Inc. , 130 F.3d 702, 709 (5th Cir. 1997); accord

Riddle v. Louisiana Power & Light Co.

, 654 So.2d 698, 701 (La. App.

Cir. 1995 ). Also, when the B arber Court was confronted with a

similar request to what has been suggested by Dr. Robertson as a

reasonable accommodation--here the hiring of an administrative

assistant, the court responded: “[w]e cannot say that [the

disabled] can perform the essential functi ons of the job with

reasonable accommodation, if the only successful accommodation is

for [the disabled] not to perform those essential functions.” I d

.

Likewise, we conclude that t he ADA does not require NMC in this

case to transfer any of the essential functions of Dr. Robertson’s7

job to an assistant or to anyone else. If he can’t perform the

essential functions of his job absent assigning thos e duties to

someone else, (e.g., having someone else perform his job) then Dr.

Robertson can not be reasonably accommodated as a matter of law.

See generally Reigel v. Kaiser Foundation Health

, 859 F.Supp.

963(E.D. N.C. 1994)(holding that ph ysician’s request for reassignment to part-ti me position, position with no call duty or

position of supervision, all of which would h ave depleted the

group’s physicians by one and increased the administrative staff by

one, was not a reasonable accommodation).

Second, the ADA does not require an employer to accommodate an

individual if the employee would pose a direct threat to the health

and safety of others. S ee 42 U.S.C. § 12113(b); T urco v. Hoescht

Celanese Corp.

, 101 F.3d 1090 (5th Cir. 1996) . Based on his own

testimony that he was concerned for his patients’ safety, Robertson

posed a “direct threat” to the health and safety of others in the

workplace. Robertson’s short-term memory problems had already

caused various mistakes to be made in patients’ charts and in

dispensing medicine. Most significantly, Robertson voiced his own

concerns about his ability to take care of patients, stating that

it was only a matter of time before he seriously hurt someone. In

light of this evidence, we agree wi th the district court’s

conclusion that any accommodations in this case would be

unjustified from the standpoint of the basic medical safety of Dr.8

Robertson’s patients.

Third, Dr. Robertson mischaracterizes the decision to take or

not to take medication for his condition as an accommodation option

available to NMC. Because this personal decision rests solely with

Dr. Robertson, NMC was not in a positio n to “accommodate” him in

this way. Thus, we find this argument wholly without merit.

Therefore, after a review the record before us in a light most

favorable to the Robertsons, we conclude that no issue of material

fact remains on whether Dr. Robertson was a “qualified individual”

under the ADA. The district court was correct in granting summary

judgment in favor of NMC.

B. Remand of Pendent State-law Claims

Next, we turn to NMC’s cross-appeal challenging the district

court’s remand of the Robertson’s claims under the LDA. Under the

doctrine of pendent jurisdiction, a federal court has the

constitutional power to hear a state law claim if it is closely

related to another federal claim. S ee United Mine Workers of

America v. Gibbs , 383 U.S. 715 (1966). However, it is clear that

a district court has wide discretion to refuse to hear a pendent

state law claim. S ee 28 U.S.C. § 1367(c)(3); U nited States v.

Capeletti Bros., Inc.

, 621 F.2d 1309, 1317-18 (5th Cir. 1980). We

will therefore reverse a district court’s decision to remand

pendent state law clai ms after dismissing all remaining federal

claims only upon a finding of abuse of this “wide” discretion. S ee9

Parker & Parsley Petroleum Co. V. Dresser Indus.

, 972 F.2d 580, 585

(5th Cir. 1992). The Supreme Court identified certain

c ircumstances that should persuade a court to dismiss a st ate

claim: “Certainly, if the federal claims are dismissed before

trial, even though not insubstantial in a jurisdictional sense, the

state claims should be dismissed as well.” U nited Mine Workers

,

383 U.S. at 726. As such is the situation in this case, we hold

that the district court did not abuse its wide discretion in

refusing to hear the Robertson’s claims under the LDA.

III. Conclusion

For the foregoing reasons, we AFFIRM.