Catholic Sentinel
December 30, 2014

http://www.catholicsentinel.org/main.asp?SectionID=2&SubSectionID=34&ArticleID=27719

WASHINGTON — The Diocese of Fort-Wayne-South Bend, Indiana, plans to appeal a $1.9 million judgment against it in a lawsuit over the firing of an elementary school teacher who it claimed violated the morals clause of her contract.

A U.S. District Court jury determined Dec. 19 that the diocese discriminated against Emily Herx, a former language arts teacher at St. Vincent de Paul School in Fort Wayne, when her contract was not renewed in June 2011 after she informed a school official that she had undergone in vitro fertilization a second time.

Diocesan spokesman Sean McBride told Catholic News Service that work on an appeal was underway and would be filed in the 7th U.S. Circuit Court of Appeals in Chicago.

In a statement, Bishop Kevin C. Rhoades said the jury's decision was disappointing.

"The diocese considers it important to defend its constitutional and statutorily granted freedom to make faith-based employment decisions without inappropriate interference," he said in the two-sentence statement.

The case revolved around the question of whether the diocese discriminated against Herx because of her gender by treating her differently than male employees who were alleged to have violated the morals clause, or because she attempted to become pregnant through IVF.

Both the diocese and Herx agreed that the teacher was fired for undergoing IVF. The diocese argued that it was not her attempt to become pregnant but how she chose to do so that was at issue.

As a condition of employment, Herx signed the clause, which required her to uphold Catholic teaching, diocesan officials testified. When it became known that Herx underwent IVF, the diocese maintained that because she was a religious employee, the parish had no choice but to decline to renew her teaching contract.

McBride told CNS that diocesan lawyers argued the case "should have never gone to trial in the first place."

John Theisen, one of the diocese's lawyers, told reporters after the jury reached its decision that the case remained an issue of religious freedom and that exemptions in civil rights laws for religious employers should have protected the diocese, reported The Journal Gazette daily.

Kathleen DeLaney, Herx's attorney, did not return calls seeking comment.

Court filings show that Herx, who was hired by the school in 2003, told Principal Sandra Guffey in March 2010 that she was undergoing IVF. Guffey testified that she was unaware of the church's teaching on the procedure at the time, according to news reports.

When Herx underwent a second round of treatments in April 2011, Guffey said she then was aware of church teaching and informed Msgr. John Kuzmich, then-pastor of St. Vincent de Paul Parish. The priest told the court he sought guidance from the diocese before deciding not to renew the teacher's contract for the 2011-2012 school year.

Herx's attorneys also charged that the diocese was inconsistent in requiring employees to follow the morals clause, noting that three male school employees were thrown out of a strip club after harassing one of the performers. They were given copies of the morals clause, the Journal Gazette reported, and afterward one of the men expressed remorse for his actions.

Herx never expressed remorse for her actions, according to the testimony.