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Fired teacher suing diocese

EEOC found rights violated over in vitro fertilization

– A former teacher at St. Vincent de Paul Catholic School sued the school and the Fort Wayne-South Bend Catholic Diocese in federal court for firing her because she underwent in vitro fertilization.

Filed this month in U.S. District Court by Emily Herx, the lawsuit comes after the Equal Employment Opportunity Commission found the diocese violated her civil rights – specifically by sex discrimination – as well as violating the Americans with Disabilities Act.

Infertility is considered a disability under the law.

According to the her lawsuit, Herx, who has a degree from Ball State University and a teaching license from Taylor University, was fired April 25, 2011, effective in the upcoming school year, for "improprieties related to church teachings or law."

A language arts teacher, Herx was not required to complete training in the Catholic faith as a condition of her employment, was not ordained by the Catholic Church and is not a minister, according to the lawsuit.

Herx, who suffers from a diagnosed medical condition that causes infertility, began treatments in November 2008 that included in vitro fertilization.

She informed her immediate supervisor that she and her husband were considering fertility treatment, and then in 2010 Herx signed a contract to teach language arts from August 2010 to June 2011, according to the lawsuit.

In March 2010, Herx told the principal she would need to schedule sick days to undergo the fertility treatments.

"At no point through the couple's first round of (in vitro fertilization) did (the principal) object, alert Herx to any Catholic teachings or doctrine that might be implicated, or take any disciplinary action against Herx," the lawsuit read.

More than a year later, Herx asked for more time off for the second round of treatment and was then asked to meet with the Rev. John Kuzmich, pastor of St. Vincent de Paul Catholic Church.

In that meeting, Kuzmich told her he feared news of the in vitro fertilization treatments would cause a scandal and had already fielded a complaint about the treatment from another teacher, according to the lawsuit.

Herx, who had high marks as a teacher, asked Kuzmich whether her job was at risk, and he told her he needed to do more research, the lawsuit said.

On April 25, 2011, Herx received notice that her contract for the 2011-12 school year was not to be renewed, according to the lawsuit.

On May 24, Herx and her father, who is an attorney, met with school officials, including Kuzmich.

During the meeting, Kuzmich told Herx repeatedly she was a "grave, immoral sinner," and that should news of the treatments get out there would be a scandal, according to court documents.

Kuzmich told Herx the decision to fire her had nothing to do with her abilities as a teacher but rather she was being fired by the diocese for violating the teachings of the Catholic Church, according to court documents.

A request for an appeal before Bishop Kevin Rhoades was denied. Rhoades said that "in vitro fertilization … is an intrinsic evil, which means that no circumstances can justify it," the lawsuit read.

Rhoades, who succeeded Bishop John M. D'Arcy after he retired in January 2010, has been an outspoken critic of the Department of Health and Human Services requirement that all employers, including religious institutions, or their insurers provide coverage for contraceptives used by their employees. In a letter published in The Journal Gazette in February, Rhoades assailed the mandate as an attack on religious rights.

According to the lawsuit, Herx said neither she nor her physician destroyed a single embryo, something that was conveyed to school and church officials.

Herx paid for the treatments through the diocese's self-funded health insurance plan, according to the lawsuit.

Herx alleges that the diocese violated the pregnancy discrimination act of the Civil Rights Act – specifically by firing her when she sought in vitro fertilization treatments after failing to become pregnant by natural means.

"Defendants similarly employ male teachers … who have received medical treatments or procedures, including vasectomies, which effect or alter their fertility," according to the lawsuit. "Defendants employ male teachers … who use contraceptives … who have received fertility treatment or their spouses have received fertility treatments."

Though infertility is a recognized disability, Herx contends it did not hinder her ability to do her job, nor did she request any special accommodation, according to court documents.

Herx is seeking compensation for her financial losses and emotional distress, as well as punitive damages, according to the lawsuit.

Diocesan spokesman Sean McBride declined to comment because the litigation is pending.

"We are saddened at the filing of the lawsuit," McBride said.

Kathleen DeLaney, Herx's Indianapolis-based attorney, said her client tried repeatedly to resolve the matter outside the court system.

"We participated in the EEOC's process in good faith and attempted to resolve the matter without litigation," DeLaney said.

rgreen@jg.net

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