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The Journal Gazette

Tuesday, March 15, 2016 9:16 pm

Diocese appeals judgment in gender discrimination case

Rebecca S. Green|The Journal Gazette

The Roman Catholic Diocese of Fort Wayne-South Bend appealed the judgment in the federal gender discrimination case it lost last December.

In court documents filed late last week, just days before the deadline to appeal expired, attorneys for the diocese asked the U.S. Seventh Circuit Court of Appeals in Chicago to overturn the final judgment of the court.

After a week-long jury trial in December, the diocese lost a gender discrimination case brought by a former language arts teacher in the spring of 2012.

Emily Herx taught at St. Vincent de Paul Catholic School, and on two prior occasions underwent in vitro fertilization treatments, receiving emails from her principal that appeared to offer a level of support and encouragement. 

But when she went to her superiors in early 2011 to ask about time off for a third round of treatments, the Rev. John Kuzmich told the principal not to renew Herx's contract for the 2011-12 school year.

In vitro fertilization is condemned by the teachings of Roman Catholic Church as an intrinsic evil that no circumstances can justify.

In the spring of 2012, Herx sued the diocese, contending she had been the victim of gender discrimination and that the diocese treated similarly situated male teachers differently than she had been treated.

She also argued that she was discriminated against because she tried to become pregnant again, albeit through a method of which her employer disapproved. 

The diocese argued it was protected from Herx's federal claims of gender discrimination, having chosen not to renew her contract because she violated church teachings, not because she tried to become pregnant. 

While the jury originally awarded the teacher $1.9 million in damages, U.S. District Court Judge Robert L. Miller reduced the award to $543,803 in January. That amount was cut again, just weeks ago, to $403,607.

On Friday, the diocese filed its notice of appeal. The case has already been docketed by the appeals court, with the first round of briefs due in late October.

Immediately after the verdict, the diocese asked Miller to toss it. He declined. 

Prior to the trial, diocesan attorneys sought summary judgment on the issues of religious discrimination and the gender discrimination. Miller granted their request on the issue of religious discrimination, but allowed the case to proceed to trial on the matter of gender discrimination. The diocese appealed that decision, but the court of appeals declined to hear their case.

When reached Tuesday afternoon, Herx's attorney Kathleen DeLaney said they were not surprised by the appeal.

“The Diocese’s decision to appeal the outcome vindicating Mrs. Herx’s legal rights is unfortunate, but not unexpected. We are fully prepared to defend the jury’s verdict in Mrs. Herx’s favor on appeal,” DeLaney said in an email.

An email message left with diocesan attorneys was not returned Tuesday afternoon.