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Herx v. Diocese of fort Wayne-South Bend Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

September 3, 2014

EMILY HERX, Plaintiff

Page 1169

For Emily Herx, Plaintiff: Christopher S Stake, Kathleen A DeLaney, DeLaney & DeLaney LLC, Indianapolis, IN.

For Diocese of Fort Wayne-South Bend Inc, St Vincent de Paul School, Defendants: John C Theisen, LEAD ATTORNEY, Theisen Bowers & Associates LLC, Fort Wayne, IN; M Scott Hall, LEAD ATTORNEY, Hall & Gooden LLP, Fort Wayne, IN.

For American Society for Reproductive Medicine, Amicus: John M Faust, LEAD ATTORNEY, Law Office of John M Faust PLLC, Washington, DC.

For American Civil Liberties Union, Amicus: Jennifer K Lee, LEAD ATTORNEY, American Civil Liberties Union - NY/NY, New York, NY; Ariela M Migdal PHV, Brigitte A Amiri PHV, PRO HAC VICE, American Civil Liberties Union - NY/NY, New York, NY; Daniel Mach PHV, PRO HAC VICE, American Civil Liberties Union - Was/DC, Washington, DC.

Page 1170


Robert L. Miller, Jr., United States District Judge.

The Diocese of Fort Wayne-South Bend, Inc. and St. Vincent De Paul School declined to renew Emily Herx's teaching contract after learning that she was undergoing in vitro fertilization in an effort to become pregnant. The Diocese and the School claim they declined to renew her contract because the Catholic Church views in vitro fertilization as gravely immoral. Mrs. Herx sued the Diocese and the School, claiming the nonrenewal -- effectively a termination -- was based on her sex and her disability (infertility), and the Diocese and the School moved for summary judgment based on

Page 1171

their rights as religious organizations and the religious reason for the employment decision. The court denies the summary judgment motion on the sex discrimination claim because, while a jury could find that a gender-neutral rule against in vitro fertilization prompted her nonrenewal, a jury also could find that a male teacher's contract would have been renewed under the same circumstances. The court grants summary judgment on the disability claim because no reasonable jury could find that Mrs. Herx lost her teaching position because of her infertility, as opposed to the treatment for her infertility.


Summary judgment is appropriate when " the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is enough evidence for the nonmoving party for a jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a genuine issue of material fact exists, the court accepts as true the evidence favoring the nonmovant, and draws all inferences that a reasonable jury could draw in her favor. Anderson v. Liberty Lobby, 477 U.S. at 255; Weigle v. SPX Corp., 729 F.3d 724, 730 (7th Cir. 2013). The existence of an alleged factual dispute, by itself, won't defeat a summary judgment motion; the nonmovant must present definite and competent evidence at the summary judgment stage, Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012), and affirmatively show that there is a genuine issue of material fact that needs to be resolved at trial. Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007); see also Fed.R.Civ.P. 56(e)(2). Summary judgment has become " the put up or shut up moment" when a party must show evidence that would convince a jury to accept its version of the facts. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)( quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).

These are facts a reasonable jury could find, based on the summary judgment record:

The Diocese hired Mrs. Herx in August 2003 to teach junior high language arts at St. Vincent School in Fort Wayne, Indiana, and she served in that capacity on and off until her termination in June 2011. During her tenure, Mrs. Herx's employment was governed by year-to-year teacher's contracts that contained the following provision:

TERMS AND CONDITIONS: This contract may be terminated prior to its expiration, or not renewed, for reasons relating to improprieties regarding Church teachings or laws, unsatisfactory performance, inattention to duties, incompetency, irregular attendance, insubordination, failure to follow diocesan policies and procedures, or for any other justifiable reason, provided that, if the contract is terminated or not renewed, the teacher shall have, as the teacher's sole means of recourse, an opportunity to be heard in accordance with appropriate Diocesan Educational Policies. An employee will not be discharged on account of disability if able to perform, with or without reasonable accommodations, the essential functions of the teaching position. Acknowledging and accepting the religious and moral nature of the Church's teaching mission, the undersigned agrees to conduct herself or himself at all times, professionally

Page 1172

and personally, in accordance with the episcopal teaching authority, law and governance of the Church in this Diocese. Charges of immoral behavior, or of conduct violative of the Teachings of the Church shall ultimately be resolved exclusively by the Bishop, or his designee, as provided in the Diocesan Educational Policies.

( emphasis added to highlight the portion of the contract the parties agree to be the " morals clause" ). Also in effect during Mrs. Herx's tenure was Diocesan Educational Policy No. P3020, which reads in pertinent part as follows:

II. Religious Standards
Since the distinctive and unique purpose of the Catholic school is to create a Christian educational community, enlivened by a shared faith among the administrator(s), teachers, students and parents, the highest priority is to hire Catholics in good standing in the Catholic Church who demonstrate a commitment to Christian living, are endowed with and espouse a Catholic philosophy of life, and believe in the Catholic Church and her teachings. Both Catholic and non-Catholic teachers who are employed in a Catholic school must, as a condition of employment, have a knowledge of and respect for the Catholic faith, abide by the tenets of the Catholic Church as they apply to that person, exhibit a commitment to the ideals of Christian living, and be supportive of the Catholic faith.

Sometime in 2008, Mrs. Herx and her husband learned that she suffered from a medical condition that causes infertility. The couple sought the advice of a specialist and began a course of fertility treatments that included artificial insemination and in vitro fertilization. Before undergoing any treatments, Mrs. Herx told her immediate supervisor, St. Vincent School Principal Sandra Guffey, that she was scheduled to undergo artificial insemination, to which Ms. Guffey appeared to respond favorably. When that procedure wasn't successful, Mrs. Herx began her first round of in vitro fertilization treatments in March 2010 after having notified Ms. Guffey that she would be taking time off from school. Ms. Guffey didn't object,[1] and Mrs. Herx was allowed to take sick days to undergo her treatments. The Diocese's health insurance plan, of which Mrs. Herx was a member, covered some of the associated medical bills. At around the same time, Mrs. Herx renewed her teaching contract with St. Vincent School for the 2010-2011 school year.

Mrs. Herx learned about a year later -- sometime in April 2011, when she was about to undergo a second round of in vitro fertilization treatments -- that her infertility treatments were problematic for the Diocese (from this point on, the Diocese and the School are simply referred to as " the Diocese" ). She learned at a meeting with Monsignor John Kuzmich of St. Vincent de Paul Catholic Church that Ms. Guffey had told him about her infertility treatments. Msgr. Kuzmich told her that in vitro fertilization treatments violated Church teachings, a fact of which Mrs. Herx was unaware, and he said that she would have been better off had she not mentioned the treatments to anyone. Mrs. Herx asked if her job was at risk and Msgr. Kuzmich told her he wasn't sure. The Diocese notified Mrs. Herx that her teaching contract wouldn't be renewed for

Page 1173

the 2011-2012 school year based on what the Diocese termed " improprieties related to church teachings or law."

Mrs. Herx met with school officials to discuss reconsideration of the termination decision, and was informed that the decision to not renew her contract would stand. A few weeks later, Mrs. Herx met with Msgr. Kuzmich to appeal the termination decision, but Msgr. Kuzmich decided that her contract wouldn't be renewed. Mrs. Herx was allowed to continue teaching through the end of the 2010-2011 school year. Her employment was ultimately terminated on June 22, 2011.

Mrs. Herx filed a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC issued its Determination concluding that the the Diocese had terminated Mrs. Herx's employment in violation of Title VII and the Americans with Disabilities Act.

Mrs. Herx filed her complaint in this court in a timely manner, alleging that the Diocese violated Title VII of the Civil Rights Act of 1964, as amended, including the Pregnancy Discrimination Act, 42 U.S.C. § 2000e et seq., and Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The court denied the Diocese's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) after a hearing in March 2013, and the case is now before the court on the Diocese's motion for summary judgment.

II. Discussion

A. Title VII and the Pregnancy Discrimination Act

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual because of her sex. 42 U.S.C. § 2000e-2(a). The Pregnancy Discrimination Act extended the " because of sex" protections of Title VII to include pregnancy, childbirth, and related medical conditions. 42 U.S.C. § 2000e(k); see also Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) (" The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." ); Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007) (" [P]regnancy is a proxy for gender, and, therefore, discrimination against pregnancy is discrimination against women" ). Mrs. Herx's claim for pregnancy discrimination " is a claim for gender discrimination, and the legal ...

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