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Vandersand v. Wal-Mart Stores

July 31, 2007

ETHAN VANDERSAND, PLAINTIFF,
v.
WAL-MART STORES, INC., DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Wal-Mart Stores, Inc.'s (Wal-Mart) Motion to Dismiss Complaint or Stay Proceedings (d/e 6). Plaintiff Ethan Vandersand is a pharmacist who worked in a Wal-Mart pharmacy in Beardstown, Illinois. Wal-Mart placed him on leave without pay because he refused to dispense certain contraceptives commonly referred to as "the morning after pill," "Plan B" or "emergency contraceptives" (hereinafter "Emergency Contraceptives"). Vandersand alleges that this adverse employment action against him constitutes religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e et seq. (Count I). Vandersand also alleges that this action constitutes discrimination in violation of the Illinois Health Care Right of Conscience Act (Right of Conscience Act). 745 ILCS 70/1 et seq.

Wal-Mart asks the Court to dismiss the claims because it was only complying with a new state regulation (Rule) that requires Division I pharmacies to dispense Emergency Contraceptives without delay. 68 Ill. Adm. Code § 1330.91(j). Wal-Mart also argues that pharmacists are not covered by the Right of Conscience Act. For the reasons set forth below, the Motion is denied. Vandersand states a claim for religious discrimination under Title VII. Vandersand also is covered by the plain language of the Right of Conscience Act, and so he states a claim in Count II, also.

STATEMENT OF FACTS

For purposes of the Motion, the Court must accept as true all of well-pleaded factual allegations in the Complaint and draw all inferences in the light most favorable to Vandersand. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). The Court may also consider matters of which the Court can take judicial notice, such as public records. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). The Court should only grant the Motion to Dismiss if it appears beyond doubt that Vandersand can prove no set of facts that would entitle him to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).

According to the Complaint, Vandersand is a licensed pharmacist. He worked at Wal-Mart's retail pharmacy in Beardstown, Illinois (the "Pharmacy"). The Pharmacy is classified in Illinois as a "Division I" pharmacy. Division I pharmacies are pharmacies that engage in general community pharmacy practice and that are open to, or offer pharmacy services to, the general public. 68 Ill. Admin. Code § 1330.5.

On April 1, 2005, Illinois promulgated an Emergency Amendment to § 1330.91 of Title 68 of the Illinois Administrative Code. The Emergency Amendment became permanent in the form of a rule on August 25, 2005. The Rule states:

j) Duty of Division I Pharmacy to Dispense Contraceptives

1) Upon receipt of a valid, lawful prescription for a contraceptive, a pharmacy must dispense the contraceptive, or a suitable alternative permitted by the prescriber, to the patient or the patient's agent without delay, consistent with the normal timeframe for filling any other prescription. If the contraceptive, or a suitable alternative, is not in stock, the pharmacy must obtain the contraceptive under the pharmacy's standard procedures for ordering contraceptive drugs not in stock, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. However, if the patient prefers, the prescription must be transferred to a local pharmacy of the patient's choice under the pharmacy's standard procedures for transferring prescriptions for contraceptive drugs, including the procedures of any entity that is affiliated with, owns, or franchises the pharmacy. Under any circumstances an unfilled prescription for contraceptive drugs must be returned to the patient if the patient so directs.

2) For the purposes of this subsection (j), the term "contraceptive" shall refer to all FDA-approved drugs or devices that prevent pregnancy.

3) Nothing in this subsection (j) shall interfere with a pharmacist's screening for potential drug therapy problems due to therapeutic duplication, drug-disease contraindications, drug-drug interactions (including serious interactions with nonprescription or over-the-counter drugs), drug-food interactions, incorrect drug dosage and duration of drug treatment, drug-allergy interactions, or clinical abuse or misuse, pursuant to 225 ILCS 85/3(q).

68 Ill. Admin. Code § 1330.91(j). As quoted above, the term "contraceptives" in the Rule includes all FDA-approved contraceptives, which includes Emergency Contraceptives.

On February 2, 2006, Vandersand was working at the Pharmacy. At about 10:30 a.m., the Pharmacy received a telephone call from a woman who identified herself as a nurse practitioner with Planned Parenthood in Springfield, Illinois. The caller asked Vandersand if he would dispense Emergency Contraceptives. Vandersand told her that he would not. Upon the caller's request, Vandersand gave the caller his name.

A few minutes after the initial phone call, the same individual called the Pharmacy again asking if there were any other pharmacies in town. Vandersand gave the caller the name and telephone number of another pharmacy located in Beardstown. The caller informed Vandersand that one of her patients might be coming to the Pharmacy. The caller asked Vandersand to tell this patient to call the caller if she came to ...


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