Noesen, Neil T. v. Medical Staffing Net , 232 F. App'x 581 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 25, 2007*
Decided May 2, 2007
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2831
NEIL T. NOESEN, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin
v.
No. 06-C-071-S
MEDICAL STAFFING NETWORK,
INC., et al., John C. Shabaz,
Defendants-Appellees. Judge.
ORDER
Neil Noesen, a pharmacist, refuses on religious grounds to fill prescriptions
for birth control. He brought this pro se lawsuit against Medical Staffing Network,
Inc. (“MSN”), Wal-Mart Stores, Inc., and the State of Wisconsin, alleging that they
discriminated against him on the basis of his religion by refusing to exempt him
from having any contact with customers who ask to have such prescriptions filled.
The district court resolved all claims against Noesen. The only issues on appeal
concern Noesen’s contention that the defendants violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., when Wal-Mart refused to accede to
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2831 Page 2
his demand that it insulate him from any interaction, no matter how brief, with any
person seeking birth control. We affirm the district court’s judgment.
The material facts are undisputed. Wal-Mart’s pharmacy in Onalaska,
Wisconsin assists hundreds of customers with pharmacy-related requests and fills
an average of 250 prescriptions daily. To meet the high volume of customer
requests, pharmacists and pharmacy technicians share customer-service duties.
For example, both pharmacists and technicians must assist walk-in customers and
answer telephone inquiries from customers, physicians, hospitals, clinics, insurance
companies, and other pharmacies. Technicians typically input prescription
information into the computer system and verify insurance, while pharmacists have
sole responsibility for checking all prescriptions and handing the medications to
retail customers. Approximately 10% of the pharmacy’s customer volume is related
to requests for birth control.
In July 2005 Wal-Mart asked MSN, a health care staffing provider, for
temporary assistance in its Onalaska pharmacy. MSN recommended Noesen.
Noesen, a Roman Catholic, is licensed by the State of Wisconsin to practice
pharmacy, but the state licensing authority restricted his license in 2004 because of
his refusal to fill, or refer to another pharmacy, a woman’s prescription for
contraception. Under the restriction, Noesen must notify potential employers in
writing of the pharmacy services he will not perform and the steps he will take to
ensure that a patient’s access to medication remains unimpeded.
Before starting work at the Onalaska pharmacy, Noesen wrote to Wal-Mart
and explained that, due to his religious convictions, he would “decline to perform
the provision of, or any activity related to the provision of contraceptive articles,”
including “complete or partial cooperation with patient care situations which
involve the provision of or counsel on contraceptive articles.” Robert Overton, a
pharmacist and acting supervisor of the Onalaska pharmacy, understood Noesen’s
limitations to mean that he would not fill prescriptions for birth control, and agreed
to accommodate that limitation. Overton relieved Noesen from: filling
prescriptions for birth control, taking orders for birth control from customers or
physicians, handing customers birth control medication, and performing checks on
birth control orders. Overton also arranged for birth control prescriptions to be
sorted into a separate basket so that Noesen would not have to touch the items and
ensured that someone would be available to fill orders and respond to customer
inquiries concerning birth control.
Within days Overton realized that, even with these accommodations, Noesen
refused to perform general customer-service duties if they involved even briefly
talking to customers seeking contraception. For example, when Noesen answered
telephone calls from customers or physicians attempting to place orders for birth
No. 06-2831 Page 3
control, Noesen put them on hold and refused to alert other pharmacy staff that
someone was holding. Similarly, when customers came to the counter with birth
control prescriptions, Noesen walked away and refused to tell anyone that a
customer needed assistance. Noesen explained that if required to speak to
customers seeking birth control, he would always counsel them against it and
refuse to fill their prescriptions. Noesen rejected Overton’s offer that Noesen assist
only customers that were not of childbearing age or only male customers. He
insisted that the only acceptable accommodation was to relieve him of all counter
and telephone duties unless customers were first pre-screened by some other
employee to ensure that they were not seeking birth control. Overton agreed that
he and the pharmacy intern could assist all walk-in customers but due to high
caller volume Noesen, like all other staff, needed to answer the telephones,
although he could refer callers with birth control issues to others. Noesen rejected
this accommodation.
On his fifth day at the Onalaska pharmacy, after Noesen refused his work
assignment with the modified accommodations, Overton fired Noesen. But Noesen
refused to leave the store. He began lecturing customers about Wal-Mart’s
discriminatory practices and had to be carried out by police. Based upon his
conduct at Wal-Mart, MSN also fired Noesen.
The district court resolved all claims in favor of the defendants. The court
concluded that Noesen had not alleged a failure to accommodate claim against MSN
and that “Wal-Mart gave [Noesen] the exact accommodation that he sought.” The
court also explained that, after receiving Wal-Mart’s initial accommodation, Noesen
wanted an additional accommodation—avoiding any situation where he might
interact with a customer seeking birth control—to which he was not entitled. As to
Noesen’s separate claims against the State of Wisconsin for failing to enact a rule
that would allow him to refuse to distribute birth control, the district court
dismissed them, stating generally that it lacked jurisdiction.
On appeal Noesen first contends that a genuine issue of material fact exists
concerning whether Wal-Mart and MSN reasonably accommodated his religious
beliefs because a jury could find that his proposed accommodation was reasonable.
We review the district court’s grant of summary judgment de novo, viewing all facts
No. 06-2831 Page 4
and inferences in Noesen’s favor.1 See Fane v. Locke Reynolds, LLP, 480 F.3d 534,
538 (7th Cir. 2007).
Title VII of the 1964 Civil Rights Act requires employers to make reasonable
accommodations for their employees’ religious beliefs and practices unless doing so
would result in undue hardship to the employer. 42 U.S.C. § 2000e-2; Reed v. Great
Lakes Cos., 330 F.3d 931, 934-35 (7th Cir. 2003). A reasonable accommodation is
one that “eliminates the conflict between employment requirements and religious
practices.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986); see Anderson
v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001). Noesen’s religious
beliefs (and his interpretation of the Wisconsin Administrative Code) require him to
avoid participating in the distribution of birth control “in any way.” Although
Wal-Mart attempted to accommodate him, Noesen says that the conflict between
his employment obligations and religious beliefs was not eliminated. And, he
insists, the conflict could have been eliminated in only one way: by Wal-Mart
relieving him of all counter and telephone duties. Noesen, however, was not
entitled to that accommodation if it would work an undue hardship on Wal-Mart.
See 42 U.S.C. § 2000e(j); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84
(1977); Endres v. Ind. State Police, 349 F.3d 922, 925 (7th Cir. 2003). Undue
hardship exists when a religious accommodation would cause more than minimal
hardship to the employer or other employees. Trans World Airlines, Inc., 432 U.S.
at 84; Endres, 349 F.3d at 925.
Wal-Mart contends, and we agree, that Noesen’s proposed accommodation
would impose an undue hardship. It is undisputed that Wal-Mart’s relieving
Noesen of all telephone and counter duties would have shifted his share of initial
customer contact to other pharmacy staff. Yet an accommodation that requires
other employees to assume a disproportionate workload (or divert them from their
regular work) is an undue hardship as a matter of law. See Bruff v. N. Miss. Health
Servs., Inc., 244 F.3d 495, 501 (5th Cir. 2001); see also Endres, 349 F.3d at 925(excusing some employees from undesirable tasks would create substantial costs for
other employees as well as for the entity itself). Noesen nevertheless insists that
reassigning initial customer contact away from him to lower-paid technicians would
1
We note that the district court never considered whether MSN afforded
Noesen a reasonable accommodation because the court concluded that he had not
alleged a failure to accommodate claim against MSN. Indeed, our review of the
record reveals that he never developed a factual basis for his claim against MSN.
Likewise, in his brief to this court he did not explain how MSN failed to
accommodate him. Thus Noesen has waived his claim against MSN. See Spath v.
Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000) (explaining that
failure to develop factual basis for argument results in waiver).
No. 06-2831 Page 5
result in a more efficient use of pharmacy resources. But even assuming that the
technicians could promptly answer all incoming calls from customers and health
professionals, the diversion of technicians from their assigned duties of data input
and insurance verification would impose the undue cost of uncompleted data work
on Wal-Mart. Wal-Mart was under no obligation to rearrange staffing and incur
such costs to accommodate an inflexible employee. See Endres, 349 F.3d at 926;
Bruff, 244 F.3d at 500. Accordingly, the district court’s grant of summary judgment
in Wal-Mart’s favor was proper.
Noesen next contends that the district court erroneously dismissed his claims
against the State of Wisconsin because, he says, Title VII requires that Wisconsin
enact a “conscience clause” exception to its codified standards of professional
conduct allowing him to refuse to dispense birth control without facing disciplinary
proceedings. Thus, he says, the state was a party to Wal-Mart’s Title VII violation.
Even though Noesen insists that § 2000e-7 establishes federal court
jurisdiction over his claim against the State of Wisconsin, it does not. The Eleventh
Amendment bars federal jurisdiction over suits brought against states unless the
state has consented to suit in federal court or Congress validly abrogated the state’s
immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984).
Although Congress has abrogated states’ immunity under Title VII, Nanda v. Bd. of
Tr. of Univ. of Ill., 303 F.3d 817, 828-31 (7th Cir. 2002), cert. denied, 539 U.S. 902(2003), Title VII applies to states only in their capacity as employers, see id.; Drake
v. Minn. Mining & Mfg. Co., 134 F.3d 878, 885 n.4 (7th Cir. 1998). Here it is
undisputed that the State of Wisconsin neither agreed to this suit in federal court
nor employed Noesen during the events at issue in this suit. The district court
therefore was correct that it lacked jurisdiction over Noesen’s Title VII claims
against the State of Wisconsin and properly dismissed them.
AFFIRMED.