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In July 2005 Wal-Mart asked MSN, a health care staffing provider, for temporary assistance in its Onalaska, Wisconsin, 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.” 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 Noesenfrom 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 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 prescreened 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. Noesen sued MSN and Wal-Mart, alleging discrimination on the basis of his religion. Will he prevail?

In July 2005 Wal-Mart asked MSN, a health care staffing provider, for temporary assistance in its Onalaska, Wisconsin, 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.” 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 Noesenfrom 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 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 prescreened 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. Noesen sued MSN and Wal-Mart, alleging discrimination on the basis of his religion. Will he prevail?

 

 

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