The Journal Gazette
Wednesday, March 16, 2016 7:18 pm

Jury sides with fired teacher

Rebecca S. Green The Journal Gazette

Almost every single thing for which Emily Herx asked the jury, she received.

Nearly $2 million in damages, and vindication, after the jury ruled that the Catholic Diocese of Fort Wayne-South Bend discriminated against the former language arts teacher at St. Vincent de Paul Catholic School when they fired her for undergoing in vitro fertilization.

The verdict came after about 51/2 hours of deliberation Friday afternoon, capping off a four-day jury trial before U.S. District Judge Robert Miller Jr. in the expansive federal courthouse just a few blocks from the Cathedral of the Immaculate Conception, the center of the diocese.

As she waited for the jury to come in, Herx sat ramrod straight in her chair at the table next to her attorney, Kathleen DeLaney, her face anything but calm as she clearly tried to control her breathing and anxiety.

Throughout the trial, she heard herself characterized by the defense as a potential drug abuser, an emotional basket case and as someone who committed a sin so grave and immoral that no circumstances could justify it.

But after the verdict was read, she seemed to uncoil with relief, crying and holding onto DeLaney in a long and tearful embrace.

At issue in the case was whether the diocese discriminated against Herx because of her gender by treating her differently than similarly situated male employees, or because of her attempts to become pregnant, by forcing her to choose between in vitro fertilization and her job. 

Throughout the case, both sides stressed that Herx was fired for undergoing in vitro fertilization. For Herx, the decision to continue the treatment abhorred by the church was her last and safest chance to become pregnant with another child.

For the diocese, the matter had nothing to do with her attempt to become pregnant but with her choice of method. As part of her contract, Herx had signed a morals clause, promising to uphold Catholic teaching. When she did not do so, diocesan officials had no choice but to remove her from their teaching roster.

Repeatedly, the priests and bishop spoke on the stand of having wanted to see her show remorse or regret for making the decision she made.

Herx never did.

Though she had undergone the treatment twice before in 2010 and it had been known by her principal, when she notified school administrators of her third in vitro fertilization cycle in February 2011, the matter got to the Rev. John Kuzmich, the parish priest at St. Vincent de Paul Catholic Church.

In April 2011, he ordered the principal not to renew Herx’s contract for the upcoming school year.

During closing arguments Friday morning, DeLaney asked the jury for a total of $2,171,124 in damages – including compensation for lost wages, pain and suffering and enough money to punish the diocese for its conduct. Her annual salary had been around $28,000. 

Under cross-examination Thursday, Bishop Kevin C. Rhoades testified that the diocese had net assets of about $30â ¯million but said a victory for Herx in the lawsuit could affect parts of its operation.

While the total amount of $1,950,001 awarded to Herx was close to what she had asked, the jury of seven men and five woman awarded her only $1 in punitive damages.

Diocesan attorney John Theisen asked Miller to order the amount of the award capped at $300,000, per statutory requirements. DeLaney argued that the cap did not apply in this case.

The judge asked both sides to brief their arguments over the next few days.

Afterward, standing on the courthouse steps in the evening cold, her hands clenching Delaney’s and her husband’s, Herx was again tearful.

She gasped her thanks to all who had supported her through the journey from the April 2012 filing of her lawsuit against the diocese to Friday’s jury verdict: her husband, her family and DeLaney.

"I was so happy," Herx said of hearing the jury’s verdict. "It was unreal."

Her husband, Brian, also struggled to contain his emotions as he spoke with admiration of his wife’s fortitude in the case. 

"I’m so proud of her," he said.

DeLaney said she was so glad she and Herx found each other and that the former Catholic school teacher stuck with her fight. 

"It’s been a very long and difficult fight," DeLaney said. "I hope this can make some changes for women in the work place."

The diocese intends to appeal the jury’s verdict to the U.S. 7th Circuit Court of Appeals in Chicago.

As he hustled out of the courthouse, Theisen told the small scrum of reporters that the case remained an issue of religious freedom, and that exemptions in civil rights laws for religious employers should have protected the diocese from the unfavorable verdict.

"It never should have brought the case to trial," he said.

As Herx and her family walked away from the courthouse, Kuzmich left the building through a back door.

Reached by phone in South Bend on Friday evening, Rhoades said he was disappointed and would be talking with Theisen regarding the next steps in the case.

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