Wal-Mart Didn't Violate Druggist's Right to Refuse to Dispense Birth Control

Wal-Mart did not violate a pharmacist's civil rights when it fired him for refusing on religious grounds to fill prescriptions for contraceptives and failing to arrange fill-in help for customers, a federal judge in Madison, Wis., has ruled.

Although the company was willing to accommodate plaintiff Neil Noesen's religious beliefs by allowing him to refuse to fill contraceptive prescriptions, it could not reasonably allow him to place telephone customers on hold indefinitely or walk away from in-store customers without notifying another pharmacist to fill in, Judge John Shabaz concluded.

Noesen provided no evidence that the reasons given for firing him were a pretext for religious discrimination, the judge said.

According to the opinion, the underlying facts of the case are undisputed.

Noesen is a pharmacist licensed by the state of Wisconsin. Co-defendant Medical Staffing Network referred Noesen to Wal-Mart. Around that time, the Wisconsin Pharmacy Examining Board was investigating a complaint against Noesen, who is Catholic, for refusing to process or refer a woman's contraceptive prescriptions, Judge Shabaz said.

When Noesen applied for a pharmacy job with MSN, he advised them that the state was investigating his license and that he would not dispense contraception. Wal-Mart accepted him in a temporary position with knowledge of these restrictions.

Noesen also had an official at the Wal-Mart pharmacy where he worked sign a document acknowledging that Noesen would not dispense contraceptive articles or participate in any other activity involving contraceptives.

The pharmacy said it never asked Noesen to have any involvement with contraceptives. Another pharmacist was always on duty to fill prescriptions and answer questions about birth control, it said.

However, when the pharmacy reminded Noesen that he could not just walk away from customers or leave them on hold indefinitely, he filed a harassment complaint with MSN and told the pharmacy department he had done so to avoid being pressured to wait on customers who needed help with birth control, Judge Shabaz explained.

Wal-Mart fired Noesen when he allegedly called another pharmacist a liar and refused to leave the store when asked to do so. The police responded and removed him from the store in a wheelchair because he refused to walk out, the opinion said.

MSN then fired Noesen for his poor performance and disruptive behavior at Wal-Mart.

Noesen filed suit in the U.S. District Court for the Western District of Wisconsin against MSN and Wal-Mart, alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and violation of his First Amendment right to freedom of religion under 42 U.S.C. § 1985(3), which makes it illegal to conspire to deprive someone of civil rights under federal laws.

Judge Shabaz granted summary judgment to both MSN and Wal-Mart.

The judge found that Noesen's Title VII claims fell short of establishing a prima facie case and the plaintiff failed to state a claim under Section 1985(3).

Noesen failed to show that any similarly situated employee who was not Catholic had been treated differently with respect to being fired, the judge said.

Even if Noesen had established a prima facie case of religious discrimination, both MSN and Wal-Mart had provided legitimate nondiscriminatory reasons for firing him, and both defendants had accommodated his religious beliefs, Judge Shabaz found.

Wal-Mart's suggestion that Noesen tell another pharmacist about customers needing birth control prescriptions or advice, whether on the phone or in-store, was reasonable, the judge said.

Noesen was not entitled to accommodation that would allow him to walk away from unpleasant situations without referring the matter to another pharmacist, Judge Shabaz said in dismissing the complaint with prejudice.