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Herx v. Diocese of Fort Wayne-South Bend, Inc.

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

March 9, 2015

EMILY HERX, Plaintiff


ROBERT L. MILLER, Jr., District Judge.

A jury found that the Diocese of Fort Wayne-South Bend refused to renew Emily Herx's contract as an elementary school teacher because of her sex, and awarded her $1.95 million in compensatory damages and $1 in punitive damages. Because of the statutory cap on certain compensatory damages in Title VII suits, 42 U.S.C. ยง 1981a(b)(3)(D), the court reduced the compensatory damages award to $545, 803. The Diocese seeks judgment as a matter of law, Fed.R.Civ.P. 50, or remittitur or a new trial under Federal Rule of Civil Procedure 59. For the reasons that follow, the court conditionally grants the motion for remittitur, defers ruling on the motion for new trial, and denies the motion for judgment as a matter of law.


Mrs. Herx and her husband had struggled to have a second child. Her doctor believed in vitro fertilization offered their best (and perhaps only) chance. Mrs. Herx underwent two rounds of in vitro treatment and notified school principal Sandra Guffey before beginning each round. The first time, Mrs. Guffey expressed support and prayers. The Diocese renewed Mrs. Herx's year-to-year teaching contract after that. Mrs. Guffey learned of the second round of treatment when Mrs. Herx notified the attendance officer that she would be taking sick days to undergo the treatment; the attendance officer forward Mrs. Herx's email to Mrs. Guffey because Mrs. Herx had no more sick days to take.

Whether because Mrs. Guffey read this email more closely than she had those that came before or because she had a better understanding of church teachings (evidence in the record would support either), Mrs. Guffey realized at this point that Mrs. Herx was announcing an intention to do something the church views as gravely immoral. The tenets of the Roman Catholic Church considers in vitro fertilization to violate the Fifth Commandment ("Thou shalt not kill") because the procedure involves (or can involve) the freezing and discarding of embryos.

Mrs. Herx's teaching contract had what the parties call a "morals clause" that requires employees to comport themselves according to the teachings of the church. Mrs. Guffey informed Monsignor John Kuzmich about Mrs. Herx's plans for in vitro fertilization. Msgr. Kuzmich summoned Mrs. Herx to meet with him and told her in vitro fertilization was a sin. This was news to Mrs. Herx, who didn't think Msgr. Kuzmich fully understood the process she was undergoing. She tried to explain to him that no embryos were being destroyed; he said he would have to research further because he understood that embryos always were destroyed. Mrs. Herx was so close to a part of the procedure that she thought it was medically impossible to stop, so she didn't agree to stop the process. Mrs. Herx thought she had Mrs. Guffey's prior approval, so she displayed no remorse to Msgr. Kuzmich.

After conferring with other leading clergy in the Diocese, Msgr. Kuzmich directed Mrs. Guffey to notify Mrs. Herx that her teaching contract wouldn't be renewed for the 2011-2012 school year. Things got really ugly after that, but this is enough background for discussion of the Diocese's motion.


Rule 50(b) allows a judge to set aside a jury verdict only if no reasonable basis exists in the record to support the verdict. Venson v. Altamirano, 749 F.3d 641, 646 (7th Cir. 2014). The Diocese argues that the record contains too little evidence to allow a finding that Mrs. Herx was non-renewed because she is female or because she was trying to become pregnant.


Some of the Diocese's argument is evidentiary. During trial, the court allowed testimony from Michael Bradley, who had gone to a strip club with other men to celebrate his birthday when he worked at the school as a teacher. Mr. Bradley testified that when his conduct came to the attention of school officials, he was sent to meet with Monsignor Kuzmich. But Msgr. Kuzmich didn't show up; he instead sent Father Gaughan. The discussion about the wrongfulness of his conduct quickly shifted to a discussion of the upcoming Cubs' season. Mr. Bradley testified that he wasn't disciplined, no one ever reviewed the morals clause with him or asked whether he had complied with it before his contract was renewed, he didn't promise not to do it again, and the only remorse he showed was telling Father Gaughan that he was sorry someone had had to meet with him. The Diocese argues that Mr. Bradley (and other men from the school who accompanied him to the strip club)were too dissimilar to Mrs. Herx and her conduct.

The Diocese's argument conflates what a Title VII plaintiff must do to defeat a summary judgment motion and what evidence might be admissible at a Title VII trial. To defeat a summary judgment motion, a Title VII plaintiff proceeding under the indirect method of proof must come forth with enough evidence to allow a finding that others not in the protected class were treated more favorably than the plaintiff was treated. See Gaines v. K-Five Constr. Corp., 742 F.3d 256, 263 (7th Cir. 2014) ("Because Gaines has not identified a suitable comparator, his indirect theory claims were properly defeated at summary judgment."). To make such a showing, the plaintiff ordinarily has to be able to point to a better-treated co-USDC employee who is substantially similar to the plaintiff in terms of transgression, disciplining supervisor, conduct record, and so on. See, e.g., Taylor-Novotny v. Health Alliance Med. Plans, Inc., 772 F.3d 478, 492 (7th Cir. 2014) (summary judgment upheld where plaintiff's punctuality and attendance problems began in 2005 and proffered comparator's history of tardies only started in 2010); Zayas v. Rockford Memorial Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014) (summary judgment affirmed: "Zayas lacks evidence tending to show a similarly situated employee, who is not Puerto Rican or under the age of 40, that engaged in similarly unprofessional communications, and was not disciplined for it."). The Diocese might well be right that Mr. Bradley and his co-partiers weren't sufficiently similar to Mrs. Herx for this summary judgment purpose.

The Diocese's argument falls short for two reasons.

First, Mrs. Herx didn't need to show prima facie case-quality comparators at the summary judgment stage because she made an adequate showing under the direct method of proof. See Docket No. 135, at 16-19. The direct method of proof can include circumstantial evidence, Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) ("A plaintiff may prevail by constructing a convincing mosaic of circumstantial evidence that allows a [factfinder] to infer intentional discrimination by the decisionmaker.'") ( quoting Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) ("Should the plaintiff lack direct evidence, she may also point to circumstantial evidence that allows a jury to infer intentional discrimination by the decision-maker."), and doesn't always require a showing of better treatment of a similarly situated co-employee.

Second, once a Title VII case proceeds to trial, the indirect method of proof - including the showing of comparators - doesn't matter. The jury isn't asked to evaluate whether the plaintiff has shown the prima facie required by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once the case gets to trial, the only issue the jury decides is whether, based on all the evidence in the case, it's more likely than not that things would have been different had the plaintiff not been in the protected class and everything else remained the same.

The true issue when reviewing this grant of judgement as a matter of law, is not whether Greene was able to jump through the McDonnell Douglas Double Dutch, but whether she presented sufficient direct or circumstantial evidence from which a rational jury ...

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