*

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).

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,

Plaintiff-Appellant,

v.

MEDICAL STAFFING NETWORK,

INC., et al., 

Defendants-Appellees.

Appeal from the United States District

Court for the Western District of

Wisconsin

No. 06-C-071-S

John C. Shabaz, 

Judge.

O R D E R

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

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
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

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).

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
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.