Herx v. Diocese of Fort Wayne-South Bend Inc et al
Filing
135
OPINION AND ORDER: GRANTING 120 MOTION for Summary Judgment by Defendants Diocese of Fort Wayne-South Bend Inc, St Vincent de Paul School, with respect to the plaintiff's claim under the Americans with Disabilities Act, and DENYING the motion with respect to the plaintiff's claim under Title VII. Signed by Judge Robert L Miller, Jr on 9/3/2014. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
EMILY HERX,
Plaintiff
vs.
DIOCESE OF FORT WAYNESOUTH BEND INC. and ST.
VINCENT DE PAUL SCHOOL,
Defendants
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CAUSE NO. 1:12-CV-122 RLM
OPINION AND ORDER
The Diocese of Fort Wayne-South Bend, Inc. and St. Vincent De Paul School
declined to renew Emily Herx’s teaching contract after learning that she was
undergoing in vitro fertilization in an effort to become pregnant. The Diocese and
the School claim they declined to renew her contract because the Catholic Church
views in vitro fertilization as gravely immoral. Mrs. Herx sued the Diocese and the
School, claiming the nonrenewal — effectively a termination — was based on her
sex and her disability (infertility), and the Diocese and the School moved for
summary judgment based on their rights as religious organizations and the
religious reason for the employment decision. The court denies the summary
judgment motion on the sex discrimination claim because, while a jury could find
that a gender-neutral rule against in vitro fertilization prompted her nonrenewal,
a jury also could find that a male teacher’s contract would have been renewed
under the same circumstances. The court grants summary judgment on the
disability claim because no reasonable jury could find that Mrs. Herx lost her
teaching position because of her infertility, as opposed to the treatment for her
infertility.
I. FACTS
Summary judgment is appropriate when “the pleadings, depositions,
answers to the interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine
issue of material fact exists when there is enough evidence for the nonmoving
party for a jury to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine issue of
material fact exists, the court accepts as true the evidence favoring the
nonmovant, and draws all inferences that a reasonable jury could draw in her
favor. Anderson v. Liberty Lobby, 477 U.S. at 255; Weigle v. SPX Corp., 729 F.3d
724, 730 (7th Cir. 2013). The existence of an alleged factual dispute, by itself,
won’t defeat a summary judgment motion; the nonmovant must present definite
and competent evidence at the summary judgment stage, Parent v. Home Depot
U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012), and affirmatively show that there
is a genuine issue of material fact that needs to be resolved at trial. Hemsworth
v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); see also FED. R. CIV.
P. 56(e)(2). Summary judgment has become “the put up or shut up moment” when
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a party must show evidence that would convince a jury to accept its version of the
facts. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)(quoting Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).
These are facts a reasonable jury could find, based on the summary
judgment record:
The Diocese hired Mrs. Herx in August 2003 to teach junior high language
arts at St. Vincent School in Fort Wayne, Indiana, and she served in that capacity
on and off until her termination in June 2011. During her tenure, Mrs. Herx’s
employment was governed by year-to-year teacher’s contracts that contained the
following provision:
TERMS AND CONDITIONS: This contract may be terminated prior to
its expiration, or not renewed, for reasons relating to improprieties
regarding Church teachings or laws, unsatisfactory performance,
inattention to duties, incompetency, irregular attendance,
insubordination, failure to follow diocesan policies and procedures,
or for any other justifiable reason, provided that, if the contract is
terminated or not renewed, the teacher shall have, as the teacher’s
sole means of recourse, an opportunity to be heard in accordance
with appropriate Diocesan Educational Policies. An employee will not
be discharged on account of disability if able to perform, with or
without reasonable accommodations, the essential functions of the
teaching position. Acknowledging and accepting the religious and
moral nature of the Church’s teaching mission, the undersigned
agrees to conduct herself or himself at all times, professionally
and personally, in accordance with the episcopal teaching
authority, law and governance of the Church in this Diocese.
Charges of immoral behavior, or of conduct violative of the
Teachings of the Church shall ultimately be resolved exclusively
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by the Bishop, or his designee, as provided in the Diocesan
Educational Policies.
(emphasis added to highlight the portion of the contract the parties agree to be the
“morals clause”). Also in effect during Mrs. Herx’s tenure was Diocesan
Educational Policy No. P3020, which reads in pertinent part as follows:
II. Religious Standards
Since the distinctive and unique purpose of the Catholic school is to
create a Christian educational community, enlivened by a shared
faith among the administrator(s), teachers, students and parents, the
highest priority is to hire Catholics in good standing in the Catholic
Church who demonstrate a commitment to Christian living, are
endowed with and espouse a Catholic philosophy of life, and believe
in the Catholic Church and her teachings. Both Catholic and nonCatholic teachers who are employed in a Catholic school must, as a
condition of employment, have a knowledge of and respect for the
Catholic faith, abide by the tenets of the Catholic Church as they
apply to that person, exhibit a commitment to the ideals of Christian
living, and be supportive of the Catholic faith.
Sometime in 2008, Mrs. Herx and her husband learned that she suffered
from a medical condition that causes infertility. The couple sought the advice of
a specialist and began a course of fertility treatments that included artificial
insemination and in vitro fertilization. Before undergoing any treatments, Mrs.
Herx told her immediate supervisor, St. Vincent School Principal Sandra Guffey,
that she was scheduled to undergo artificial insemination, to which Ms. Guffey
appeared to respond favorably. When that procedure wasn’t successful, Mrs. Herx
began her first round of in vitro fertilization treatments in March 2010 after
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having notified Ms. Guffey that she would be taking time off from school. Ms.
Guffey didn’t object,1 and Mrs. Herx was allowed to take sick days to undergo her
treatments. The Diocese’s health insurance plan, of which Mrs. Herx was a
member, covered some of the associated medical bills. At around the same time,
Mrs. Herx renewed her teaching contract with St. Vincent School for the 20102011 school year.
Mrs. Herx learned about a year later — sometime in April 2011, when she
was about to undergo a second round of in vitro fertilization treatments — that
her infertility treatments were problematic for the Diocese (from this point on, the
Diocese and the School are simply referred to as “the Diocese”). She learned at a
meeting with Monsignor John Kuzmich of St. Vincent de Paul Catholic Church
that Ms. Guffey had told him about her infertility treatments. Msgr. Kuzmich told
her that in vitro fertilization treatments violated Church teachings, a fact of which
Mrs. Herx was unaware, and he said that she would have been better off had she
not mentioned the treatments to anyone. Mrs. Herx asked if her job was at risk
and Msgr. Kuzmich told her he wasn’t sure. The Diocese notified Mrs. Herx that
her teaching contract wouldn’t be renewed for the 2011-2012 school year based
on what the Diocese termed “improprieties related to church teachings or law.”
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When Mrs. Herx told Ms. Guffey about her in vitro fertilization procedure, Ms. Guffey
responded as follows: “Thank you for sharing this with me. I appreciate how difficult it was for you
to come to this decision. I will continue to pray for you and your husband. Keep me up to date.
Take care and God bless, Sandra.”
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Mrs. Herx met with school officials to discuss reconsideration of the
termination decision, and was informed that the decision to not renew her
contract would stand. A few weeks later, Mrs. Herx met with Msgr. Kuzmich to
appeal the termination decision, but Msgr. Kuzmich decided that her contract
wouldn’t be renewed. Mrs. Herx was allowed to continue teaching through the end
of the 2010-2011 school year. Her employment was ultimately terminated on June
22, 2011.
Mrs. Herx filed a charge of discrimination with the Equal Employment
Opportunity Commission. The EEOC issued its Determination concluding that the
the Diocese had terminated Mrs. Herx’s employment in violation of Title VII and
the Americans with Disabilities Act.
Mrs. Herx filed her complaint in this court in a timely manner, alleging that
the Diocese violated Title VII of the Civil Rights Act of 1964, as amended, including
the Pregnancy Discrimination Act, 42 U.S.C. § 2000e et seq., and Title I of the
Americans with Disabilities Act, 42 U.S.C. § 120101 et seq. The court denied the
Diocese’s motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) after a hearing in March 2013, and the case is now before the
court on the Diocese’s motion for summary judgment.
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II. DISCUSSION
A. Title VII and the Pregnancy Discrimination Act
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
to discriminate against any individual because of her sex. 42 U.S.C. § 2000e-2(a).
The Pregnancy Discrimination Act extended the “because of sex” protections of
Title VII to include pregnancy, childbirth, and related medical conditions. 42
U.S.C. § 2000e(k); see also Newport News Shipbuilding and Dry Dock Co. v.
EEOC, 462 U.S. 669, 684 (1983) (“The Pregnancy Discrimination Act has now
made clear that, for all Title VII purposes, discrimination based on a woman’s
pregnancy is, on its face, discrimination because of her sex.”); Griffin v. Sisters of
Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007) (“[P]regnancy is a proxy for
gender, and, therefore, discrimination against pregnancy is discrimination against
women”). Mrs. Herx’s claim for pregnancy discrimination “is a claim for gender
discrimination, and the legal analysis for both claims is the same.” Serednyj v.
Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011). For purposes of this
discussion, the court refers to the two statutes collectively as Title VII.
A Title VII plaintiff can prove her claim in either of two ways: by presenting
direct evidence of discriminatory intent by the defendant or by employing the
burden-shifting framework established in McDonnell Douglass Corp. v. Green,
411 U.S. 792 (1973). Under the indirect method of proof, a plaintiff must establish
that (1) she’s a member of a protected class; (2) she was meeting her employer’s
legitimate job expectations; (3) she suffered an adverse employment action; and
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(4) similarly situated employees outside the protected class were treated more
favorably. Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012); see also
Hall v. Nalco Co., 534 F.3d 644, 648-649 (7th Cir. 2008) (“adverse employment
action based on childbearing capacity will always result in treatment of a person
in a manner which but for that person’s sex would be different”).
The Diocese maintains summary judgment is proper on Mrs. Herx’s Title VII
claims because as religious organizations, they are exempt from liability under
Title VII. They argue in the alternative that Mrs. Herx can’t succeed under the
direct method of proof because she has no evidence of discriminatory intent;
according to the Diocese, neither Mrs. Herx’s gender nor her disability were factors
in the decision to not renew her contract. Lastly, the Diocese says that while Mrs.
Herx can establish the first three elements of a prima facie case – she’s a member
of a protected class, she was meeting her employer’s legitimate job expectations,
and she was effectively terminated from her teaching position through the nonrenewal of her contract – her claim fails under the fourth element because no
similarly situated employees were treated more favorably.
1. Title VII Exemptions
Title VII contains two separate provisions that combine to exempt religious
entities and educational organizations from its nondiscrimination mandate in
certain circumstances. The first exemption provides that Title VII
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shall not apply to . . . a religious corporation, association, educational
institution, or society with respect to the employment of individuals
of a particular religion to perform work connected with the carrying
on by such corporation, association, educational institution, or
society of its activities.
42 U.S.C. § 2000e-1(a). The second exemption, specific to religious educational
organizations, provides that
it shall not be an unlawful employment practice for a school, college,
university, or other educational institution or institution of learning
to hire and employ employees of a particular religion if such school,
college, university, or other educational institution or institution of
learning is, in whole or in substantial part, owned, supported,
controlled, or managed by a particular religion or by a particular
religious corporation, association, or society, or if the curriculum of
such school, college, university, or other educational institution or
institution of learning is directed toward the propagation of a
particular religion.
42 U.S.C. § 2000e-2(e)(2).
The Diocese says courts have construed those exemptions broadly to protect
employment actions taken by religious institutions against both the religious and
secular activities of their employees. The Diocese points to the decisions in
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327 (1987), and National Labor Relations Board v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979), as confirming the need for Title
VII’s religious employer exemptions to alleviate governmental interference with a
religious organization’s ability to carry out its religious mission. The Diocese also
relies on Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991), in which the plaintiff
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brought suit for religious discrimination under Title VII against the Catholic
school where she had taught for many years. The parties stipulated that Ms.
Little’s contract wasn’t renewed because she had remarried without taking the
steps necessary to get the Roman Catholic Church’s validation of her second
marriage. The Parish based its action on the “Just Cause Termination” section of
the teachers’ handbook, which required the dismissal of a teacher for public
rejection of the Church’s official teachings, which would include a teacher’s entry
into a marriage which is not recognized by the Church. 929 F.2d at 946. The Little
court recognized that while “Congress intended Title VII to free individual workers
from religious prejudice . . . Congress [also] intended the explicit exemptions to
Title VII to enable religious organizations to create and maintain communities
composed solely of individuals faithful to their doctrinal practices, whether or not
every individual plays a direct role in the organization’s ‘religious activities.’” 929
F.2d at 951. The court interpreted the phrase “of a particular religion” in Title VII’s
exemption provisions as including “permission to employ only persons whose
beliefs and conduct are consistent with the employer’s religious precepts,” and
concluded that Title VII’s prohibition against religious discrimination isn’t violated
when a parochial school discharges a teacher who publicly engaged in what the
school regarded as inconsistent with its religious principles. 929 F.2d at 951.
The Diocese explains that, like the parish in Little, it operates its Catholic
schools based upon the Church’s principles, with teachers who reflect correct
doctrine and integrity of life, so that schools providing a Catholic education with
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the Christian spirit are available to members of the Diocese. The Diocese says that
its religious standards direct that its teachers fulfill the Church’s teaching mission
as directed by the bishop, including instructing, supervising, and providing a
moral example for students. The Diocese concludes that the religious employer
exemptions in Title VII apply, and no further inquiry should be allowed, because
its decision to not renew Mrs. Herx’s contract was religiously based.
The court doesn’t read the case law the same way the Diocese does. Title VII
doesn’t give religious organizations freedom to make discriminatory decisions on
the basis of race, sex, or national origin. Petruska v. Gannon Univ., 462 F.3d 294,
303 (3d Cir. 2006) (quoting Rayburn v. General Conf. of Seventh-Day Adventists,
772 F.2d 1164, 1166 (4th Cir. 1985)). Title VII’s exemptions are limited specifically
to claims of discrimination premised upon religious preferences, and Mrs. Herx
isn’t complaining about religious preference. The Rayburn court summarized the
history of Congressional action relating to Title VII:
The legislative history reinforces the plain meaning of the statutory
text. The original Act passed by the House in 1964 excluded religious
employers from coverage altogether. The final version excluded such
employers only with respect to discrimination based on religion, and
then only with respect to persons hired to carry out the employer’s
“religious activities.” In 1972 the statute was amended to delete the
word “religious,” but Congress specifically rejected proposals to
broaden further the scope of the exemption. To the contrary, the
analysis pertaining to § 702 states clearly that “[s]uch organizations
remain subject to the provisions of Title VII with regard to race, color,
sex or national origin.”
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Rayburn v. General Conf., 772 F.2d at 1167 (quoting Section-by-Section Analysis
of J.R. 1946, the Equal Employment Opportunity Act of 1972, reprinted in id. at
1844, 1845) (internal citations omitted).
Consistent with Rayburn v. General Conf., courts across the country have
found Title VII to apply to claims against religious employers for discrimination
based on race, sex, and national origin. See, e.g., Kennedy v. St. Joseph’s
Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (“Section 2000e-1(a) does not
exempt religious organizations from Title VII’s provisions barring discrimination
on the basis of race, gender, or national origin.”); Boyd v. Harding Academy of
Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (Section 2000e-1(a) doesn’t
“exempt religious educational institutions with respect to all discrimination. It
merely indicates that such institutions may choose to employ members of their
own religion without fear of being charged with religious discrimination. Title VII
still applies, however, to a religious institution charged with sex discrimination.”);
EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1279 (9th Cir. 1982) (“The
legislative history of this exemption shows that although Congress permitted
religious organizations to discriminate in favor of members of their faith, religious
employers are not immune from liability for discrimination based on race, sex,
national origin, or for retaliatory actions against employees who exercise their
rights under the statute.”); Hopkins v. Women’s Div., General Bd. of Global
Ministries, 238 F. Supp. 2d 174, 180 (D.D.C. 2002) (applying Title VII to a race
discrimination claim against a religious employer); Elbaz v. Congregation Beth
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Judea, Inc., 812 F. Supp. 802, 807 (N.D. Ill. 1992) (“By its very terms, § 2000e–1
applies only to discrimination on the basis of religion. The ban on discrimination
in employment on account of race, national origin, or sex is still applicable to
religious organizations.”).
Title VII’s statutory exemptions would apply in this case only if Mrs. Herx’s
claims were based on religious discrimination. But her Title VII claim alleges sex
discrimination, not religious discrimination.
2. Title VII’s Ministerial Exception
Courts recognize a “ministerial exception” to Title VII, an exception rooted
in the First Amendment’s Establishment and Free Exercise Clauses that bars the
government from interfering with a religious employer’s decision to fire one of its
ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, ___
U.S. ___, 132 S. Ct. 694 (2012). “The members of a religious group put their faith
in the hands of their ministers. Requiring a church to accept or retain an
unwanted minister, or punishing a church for failing to do so, intrudes upon more
than a mere employment decision. Such action interferes with the internal
governance of the church, depriving the church of control over the selection of
those who will personify its beliefs.” 132 S. Ct. at 706.
The Diocese says that while Mrs. Herx wasn’t employed as a religion
teacher, she qualified as a “minister” because the Church, the School, and the
parents of students at the school expected and relied on her to perform the
function of a minister every day while teaching her students. According to the
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Diocese, even Mrs. Herx agreed that she was to provide students with an example
of how to live their faith to share her devotion to God whenever she could. These
functions, the Diocese claims, go to the heart of what makes St. Vincent de Paul
School a Catholic school.
The Hosanna-Tabor Court declined to adopt a “rigid formula” for deciding
when an employee is a minister within the meaning of the ministerial exception.
Based on the facts of the case before it, the Court concluded that the exception
covered Ms. Perich, based on its considerations of the following: the church held
her out as a minister, giving her a distinct role from that of most church members;
the church issued her a “diploma of vocation” that accorded her the title of
“Minister of Religion, Commissioned,” and a supplement to the diploma of
vocation provided that her “skills of ministry” and “ministerial responsibilities”
would be periodically reviewed by the congregation to provide for her “continuing
education as a professional person in the ministry of the Gospel.” 132 S. Ct. at
707. A person’s eligibility to become a minister in the Lutheran Church required
eight college-level courses in subjects including biblical interpretation, church
doctrine, and the ministry of the Lutheran teacher; obtaining the endorsement of
her local Synod district by submitting a petition that contained her academic
transcripts, letters of recommendation, personal statement, and written answers
to various ministry-related questions; and passing an oral examination by a
faculty committee at a Lutheran college. That process took Ms. Perich six years,
and even then the congregation had to recognize God’s call to her to teach. 132
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S. Ct. at 707. The Court noted that Ms. Perich held herself out as a minister,
accepted the formal call to religious service, claimed a special housing allowance
available only to those “in the exercise of the ministry,” and, after her termination,
wrote in a letter that she regarded herself as a minister. 132 S. Ct. at 707-708.
Finally, the Court underscored that Ms. Perich’s job was part of conveying the
Church’s message and carrying out its mission: she taught her students religion
four times per week and led them in prayer three times per day, took students to
the school chapel service once per week, led the service twice per year, and led her
fourth graders in brief devotional exercises every morning. 132 S. Ct. at 708.
Thus, “[i]n light of these considerations—the formal title given [Ms.] Perich by the
Church, the substance reflected in that title, her own use of that title, and the
important religious functions she performed for the Church—[the Court]
conclude[d] that [Ms.] Perich was a minister covered by the ministerial exception.”
132 S. Ct. at 708.
The Diocese hasn’t shown that Mrs. Herx’s teaching qualifications or job
responsibilities in any way compare to Ms. Perich’s situation. Nothing in the
summary judgment record suggests that Mrs. Herx was a member of the clergy
of the Catholic Church. Mrs. Herx has never led planning for a Mass, hasn’t been
ordained by the Catholic Church, hasn’t held a title with the Catholic Church, has
never had (and wasn’t required to have) any religious instruction or training to be
a teacher at the school, has never held herself out as a priest or minister, and was
considered by the principal to be a “lay teacher.” The religion teachers for the
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Diocese schools have different contracts than the non-religion teachers and are
required to have religious education and training. For example, Cynthia Wolf, a
religion teacher in the Diocese, has a Master’s Degree in Theology. Labeling Mrs.
Herx a “minister” based on her attendance and participation in prayer and
religious services with her students, which was done in a supervisory capacity,
would greatly expand the scope of the ministerial exception and ultimately would
qualify all of the Diocese’s teachers as ministers, a position rejected by the
Hosanna-Tabor Court.
Deeming Mrs. Herx a “minister” of the Catholic Church would expand the
scope of the ministerial exception too far and, in fact, would moot the religious
exemptions of Title VII and the ADA.
3. The Title VII Claim
Mrs. Herx contends that the Diocese’s admission that it didn’t renew her
contract because she underwent in vitro fertilization treatments creates a triable
fact issue as to sex discrimination because the only people who could be
terminated for that reason are pregnant women and women trying to become
pregnant. She says Msgr. Kuzmich and Mrs. Guffey both said that Mrs. Herx is
the only teacher whose contract was not renewed for reasons unrelated to job
performance and the only teacher they could recall whose contract wasn’t renewed
based on the morals clause of the teacher’s contract. According to Mrs. Herx,
forbidding non-ministerial employees from undergoing in vitro fertilization
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discriminates against women because men don’t (and can’t) undergo the
procedure.
Mrs. Herx also maintains that the Diocese’s general statement that they
encourage married couples to have children doesn’t change things, because if the
Pregnancy Discrimination arm of Title VII doesn’t protect women’s efforts to have
children through all methods, it would let employers overrule employees’ doctors.
As mentioned earlier, there are two general methods by which an
employment discrimination plaintiff can prove her case. One is called the direct
method, in which the plaintiff points to direct or circumstantial evidence that
allows a jury to infer intentional discrimination by the employer’s decision-maker.
Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 443 (7th Cir.
2014); Makowski v. SmithAdmundsen LLC, 662 F.3d 818, 824 (7th Cir. 2011).
The evidence must lead directly and without speculation to the conclusion that
the decision-maker was motivated by a prohibited factor such as sex. See Harper
v. Fulton County, Ill., 748 F.3d 761, 766 (7th Cir. 2014). Mrs. Herx’s case satisfies
that requirement.
The Diocese says Mrs. Herx’s contract was nonrenewed because she
underwent a type of infertility treatment that most directly affects females, and the
Diocese has never non-renewed a male teacher for involvement in in vitro
fertilization. Mrs. Herx’s contention that this supports an inference of sex
discrimination finds strength in the court of appeals’ decision in Hall v. Nalco Co.,
534 F.3d 644 (7th Cir. 2008), in which a private employer chose Ms. Hall as
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expendable in a downsizing because she had had many absences for in vitro
fertilization. The court of appeals explained, “Because adverse employment action
based on childbearing capacity will always result in treatment of a person in a
manner which but for that person’s sex would be different, Hall’s allegations
present a cognizable claim of sex discrimination under Title VII.” 534 F.3d at 649
(quotations marks and citation omitted).
Mrs. Herx’s case isn’t Hall v. Nalco. Ms. Hall was left unprotected in the
reduction in force not specifically because of her fertility treatments, but rather
because of the work absences occasioned by those treatments. Although the
summary judgment record contains mention of Mrs. Herx’s sick days resulting
from treatments, she wasn’t non-renewed for missing work. Still, as the court of
appeals explained in Nalco, in vitro fertilization “is one of several assisted
reproductive technologies that involves a surgical impregnation procedure. . . .
Thus, contrary to the district court’s conclusion, Hall was terminated not for the
gender-neutral condition of infertility, but rather for the gender-specific quality of
childbearing capacity.” 534 F.3d at 648-649.
But, the Diocese says, its view of in vitro fertitilization as immoral is itself
gender-neutral. The Diocese says that the treatment would be no less immoral if
a male teacher agreed with his wife that they would proceed with in vitro
fertilization, so the Diocese wouldn’t allow the hypothetical male teacher to remain
at the school, either. And a jury might well agree, after hearing evidence about the
Church’s view of in vitro fertilization, that an employer with so strong a view of
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this particular infertility treatment would discharge anyone involved with it, male
or female. But a jury wouldn’t be compelled to accept that avowed genderneutrality: the Diocese hasn’t terminated any men for participation in this (or any
other) infertility treatment. Evidence of what would be done carries less resonance
than what has been done, and a jury that isn’t required to accept a party’s factual
proposition is free to disbelieve evidence and draw a permissible contrary
inference. Even in the face of such evidence from the Diocese, a jury that resolved
every factual dispute, and drew every reasonable inference, in Mrs. Herx’s favor
could infer that Mrs. Herx’s contract would have been renewed had she been male
and everything else remained the same.
To so hold isn’t to agree with Mrs. Herx’s contention that the Pregnancy
Discrimination Act prohibits religious organizations from drawing a line at
infertility treatments they sincerely believe to be gravely immoral. The triable issue
is whether Mrs. Herx was nonrenewed because of her sex, or because of a sincere
belief about the morality of in vitro fertilization.
Because Mrs. Herx has shown that she could prevail at trial on her Title VII
claim, the Diocese’s motion for summary judgment with respect to that claim
must be denied. Discussion of the indirect method of proving sex discrimination
isn’t needed.
B. The Americans with Disabilities Act Claim
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Title I of the ADA prohibits any “covered entity” from discriminating against
a “qualified individual” on the basis of disability with regard to the discharge of
employees. 42 U.S.C. § 12112(a). Pursuant to the 2008 amendments, ailments
substantially affecting the reproductive system are considered to be disabilities.
42 U.S.C. § 12102(2)(B) (“a major life activity . . . includes the operation of a major
bodily function, including but not limited to . . . reproductive functions”). Infertility
– the inability to conceive or bear offspring, BLACK’S LAW DICTIONARY 848 (9th ed.
2009) – falls within that definition. See Yindee v. CCH Inc., 458 F.3d 599, 601 (7th
Cir. 2006) (“[S]terility . . . assuredly is a ‘disability’ under the ADA.”).
To prevail on a claim of discrimination under the ADA, a plaintiff must
demonstrate that “(1) she is disabled within the meaning of the ADA, (2) she is
qualified to perform the essential functions of the job, either with or without
reasonable accommodation, and (3) she suffered an adverse employment action
because of her disability.” Hoppe v. Lewis Univ., 692 F.3d 833, 838-839 (7th Cir.
2012). The Diocese says that even if Mrs. Herx could establish those three
elements, a claim of disability discrimination should fall once it is evident that the
adverse employment decision was religiously based.
1. ADA Exemptions
Like Title VII, the ADA contains two separate provisions exempting religious
entities from its coverage. The first exemption provides that a religious
corporation, association, educational institution, or society isn’t prohibited “from
giving preference in employment to individuals of a particular religion to perform
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work connected with the carrying on by such corporation, association, educational
institution, or society of its activities.” 42 U.S.C. § 12113(d)(1). The wording of that
exemption is almost identical to the exemption in Title VII, see 42 U.S.C. § 2000e1(a), and the legislative history of the ADA is replete with references to Title VII
and Congressional intent that the statutes’ religious exemptions be applied
consistently. See, e.g., H.R. No. 101-485(II), at 150 (1990) (“With respect to
religious entities, the bill adopts the religious preference provision from Title VII.”);
H.R. No. 101-485(III), at 46 (1990) (“This provision is similar to provisions
included in 702 of the Civil Rights Act of 1964, and should be interpreted in a
consistent manner.”); see also 42 U.S.C. § 12117(a) (“The powers, remedies and
procedures set forth in [Title VII] shall be the powers, remedies, and procedures
[the ADA] provides.”).
Because the first religious exemption under the ADA parallels that of Title
VII, it also wasn’t (for the reasons set forth in Part II-A-1 if this opinion) intended
to be a blanket exemption for religious employers from application of the ADA.
The other ADA exemption offers more promise for the Diocese: it provides
that a religious organization can require its employees to conform to the
organization’s religious tenets. 42 U.S.C. 12113(d)(2). This, the Diocese says, is
exactly what it did, and then it chose not to renew Mrs. Herx’s teaching contract
when she failed to comply with that requirement. If those turn out to be the facts,
the Diocese will prevail on this claim. But the Diocese cites no authority for the
proposition that a judge can decide, as a factual matter at the summary judgment
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stage, whether an adverse employment action was taken for failure to comply with
an exemption-approved requirement of compliance with tenets of the faith, or was
taken instead because of the employee’s disability.
Mrs. Herx is entitled to a chance to show that the Diocese’s proffered
justification wasn’t its true reason for nonrenewing her contract — that her
infertility was. McDonnell Douglass, 411 U.S. at 804.
2. Permissible Inferences on this Record
Inquiry turns to whether Mrs. Herx has pointed to evidence that would allow
a reasonable jury, viewing the evidence in her favor and drawing all permissible
inferences in her favor, to find that her infertility caused the Diocese not to renew
her contract. At the summary judgment hearing, the court expressed the tentative
view that Mrs. Herx hasn’t carried that summary judgment burden, and Mrs. Herx
asked for leave to submit additional authority because the Diocese hadn't raised
that argument. The court granted that leave.
If Mrs. Herx is correct that the Diocese never claimed entitlement to
judgment because the record wouldn’t allow an inference that her disability was
a reason for Diocese’s decision (but would allow an inference of nonrenewal based
on the in vitro treatment, or the inference that it was based on her sex), the court
should be very cautious about considering the argument. But apart from its faithbased arguments, the Diocese argued precisely what the court considered. Under
the heading, “Herx has no evidence that the decision to not renew her teacher
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contract was for anything other than Msgr. Kuzmich felt she had violated Church
teachings,” the Diocese argued:
. . . Herx stated that she has no reason to believe that Msgr.
Kuzmich’s decision regarding the non-renewal of her contract was
based on anything other than that she violated Church teachings by
engaging in IVF and showed no remorse for having done so. That, in
fact, was the basis for Msgr. Kuzmich’s decision along with the stated
need to hold teachers to the moral exemplar standard and prevent
the occurrence of scandal. Church teachings on IVF would apply
regardless of any disability on Herx’s part.
The Diocese appears to be exactly right: all the evidence in the record
indicates that the Diocese acted because of Mrs. Herx’s choice of fertility treatment
and not on any animus against infertility.
Mrs. Herx said at argument that discrimination against the treatment for
a disability is the same as discrimination against the disability itself. If she is
correct on this point, it neutralizes at least part of the ADA. The statutory
exemption already discussed says a religious organization can require employees
to comply with the tenets of the faith, which would seem to mean that if the
Diocese considers in vitro fertilization to contravene the tenets of the faith, it can
forbid its employees from receiving in vitro fertilization. But if discrimination
against in vitro fertilization is the same as discrimination against the disability
(infertility) it’s meant to treat, 42 U.S.C. § 12112(b)(6) would seem to hold that
even a religious organization couldn’t prohibit in vitro fertilization because it
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would have a disparate impact on infertile people. If Mrs. Herx is right about this
principle of law, the First Amendment would move centrally into this litigation.
But the court reads the law differently than Mrs. Herx does. Upon being
granted permission to file post-argument supplemental authorities in support of
the proposition that discrimination against the treatment equals discrimination
against the disability being treated, she submitted three case citations, all district
court opinions. Two of those cases2 dealt with employers who thought the
treatments employees were receiving made the employees disabled within the
meaning of the ADA. In Haynes v. City of Montgomery, 2008 WL 695023 (M.D.
Ala. Mar. 12, 2008), a firefighter was eventually discharged because his employer
didn't think he could perform his duties while taking Lexapro, which had been
prescribed for his anxiety disorder. At the summary judgment stage, the district
court held that a jury might find against the employer because it hadn’t made an
individualized decision with respect to the plaintiff and hadn’t relied on current
medical knowledge or available objective evidence. Id. at *4. The Haynes court
didn't hold that the employer discriminated against the firefighter on grounds of
his anxiety disorder simply because the employer didn’t want him driving a fire
truck while on Lexapro.
In Gasser v. Ramey, 125 F. Supp. 2d 1 (D.D.C. 2000), the plaintiff, a police
officer with a protein deficiency, had been prescribed a blood thinner. The court
2
The third case, Connolly v. First Personal Bank, 623 F. Supp. 2d 928 (N.D. Ill. 2008),
dealt with an employer’s misuse of a pre-hire drug test under 42 U.S.C. § 12112(d)(3)(C), and
seems to present nothing of help the decision in this case.
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understood that the employer confined the plaintiff to a desk job (which eliminated
his chances for overtime pay) because they feared that the plaintiff would bleed
severely (due to the blood thinner he was taking) were he injured on the streets.
The court denied the motion for judgment on the pleadings because the defendant
might have excluded the officer from a broader range of jobs than necessary.
Mrs. Herx’s case is far different from Haynes and Gasser. In those cases,
neither employer was said to have treated the employee differently because of the
disability: an anxiety order or a protein deficiency. Instead, each employer acted
adversely in the belief that the employees’ medications made them unfit for their
jobs — a bad truck driver due to Lexapro or a police officer vulnerable to injury
due to Coumadin. Effectively, each employer acted because it saw the treatment
as creating a new disability. This summary judgment record carries no support
for even a suspicion that the Diocese viewed in vitro fertilization as a “disability”
within the meaning of the ADA, rather than as conduct that offended the precepts
of the faith.
As already explained with respect to the Title VII claim, a reasonable trier
of fact could find that the Diocese chose not to renew Mrs. Herx’s contract
because of her gender or because of what the Diocese viewed as immoral conduct.
Under no view of the summary judgment record could a reasonable trier of fact
find the Diocese acted due to a disability-based animus against her infertility. The
Diocese is entitled to judgment as a matter of law on Mrs. Herx’s disability
discrimination claim.
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C. The First Amendment
Finally, the Diocese argues that if the Title VII religious exemptions don’t
bar Mrs. Herx’s recovery, her complaint should be dismissed because Title VII is
unconstitutional as applied.3 The Diocese maintains that to reject application of
the Title VII exemptions would produce the sort of constitutionally prohibited
inquiry into religious matters and values that the exemptions were designed to
prevent, offending the Religion Clauses. The court doesn’t see it that way.
Courts recognize the necessity of avoiding excessive entanglement and/or
intrusion into religious tenets. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, 208
(4th Cir. 2008) (acknowledging the distinction between the “ongoing government
supervision of all aspects of employment” required by the NLRA and the “limited
inquiry” entailed by discrimination statutes); Geary v. Visitation of Blessed Virgin
Mary Parish Sch., 7 F.3d 324, 331 (3d Cir. 1993) (court determined it could
adjudicate lay teacher’s ADEA claims “without the entanglement that would follow
were employment of clergy or religious leaders involved”); Redhead v. Conference
of Seventh-Day Adventists, 566 F. Supp. 2d 125, 135 (E.D.N.Y. 2008) (“Although
the validity of defendant’s religious code may not be impugned, the allegedly
discriminatory application of such a code to lay employees is a proper subject of
judicial scrutiny.”); Smith v. Raleigh Dist. of North Carolina Conf. of United
3
The Diocese made the same arguments with respect to the ADA, but the court needn’t
address those separately in light of the grant of summary judgment on the ADA claim.
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Methodist Church, 63 F. Supp. 2d 694, 718 (E.D.N.C. 1999) (“Courts that have
permitted Title VII claims against religious institutions have done so because such
claims could be determined without excessive entanglement with the religious or
ecclesiastical aspects of a given institution.”). Courts also agree that recognition
of the risk of governmental entanglement in religion prompted the development of
the ministerial exception. See, e.g., Hosanna-Tabor Evangelical Lutheran Church
and Sch. v. EEOC, ___ U.S. ___, 132 S. Ct. 694, 705-706 (2012) (“Courts of
Appeals have uniformly recognized the existence of a ‘ministerial exception,’
grounded in the First Amendment, that precludes application of [Title VII and
other employment discrimination laws] to claims concerning the employment
relationship between a religious institution and its ministers. We agree that there
is such a ministerial exception.”); Schleicher v. Salvation Army, 518 F.3d 472,
474-475 (7th Cir. 2008) (noting that the ministerial exception was devised as a
way of avoiding government entanglement with religious affairs when it came to
the employment of “ministers”); Adams v. Indiana Wesleyan Univ., No. 3:09-CV468, 2010 WL 2803077, at *9 (N.D. Ind. July 15, 2010) (“The ministerial exception
to federal court jurisdiction is a crucially important legal doctrine, designed to
prevent the federal courts from becoming entangled in the internal affairs of a
church.”).
The Diocese is understandably concerned about the possibility of a judge
or jury conducting its own secular analysis of Roman Catholic doctrine on in vitro
fertilization. That shouldn’t happen. In the ordinary Title VII case, the employer
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points to a non-discriminatory reason as the reason for the adverse employment
action, and the plaintiff tries to prove that she suffered the adverse action because
of her sex, race, national origin, and so on. In the ordinary Title VII trial, the judge
instructs the jury along these lines: “In deciding Plaintiff's claim, you should not
concern yourselves with whether Defendant’s actions were wise, reasonable, or
fair. Rather, your concern is only whether Plaintiff has proved the Defendant
[adverse employment action] him [because of race/sex] . . . .” SEVENTH CIRCUIT
FEDERAL JURY INSTRUCTIONS: CIVIL 3.07 (2010). The Diocese has given the court no
reason to think a jury is likely to disobey that instruction in a case in which a
religious employer claims to have acted for religious reasons.
III. CONCLUSION
For all of these reasons, the court GRANTS the defendants’ summary
judgment motion with respect to the plaintiff’s claim under the Americans with
Disabilities Act, and DENIES the motion with respect to the plaintiff’s claim under
Title VII.
SO ORDERED.
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ENTERED:
September 3, 2014
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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