Herx v. Diocese of Fort Wayne-South Bend Inc et al

Filing 237

OPINION AND ORDER re 218 MOTION for Judgment as a Matter of Law by Defendant Diocese of Fort Wayne-South Bend Inc. The court DENIES the dft's renewed motion for judgment as a matter of law and DEFERS ruling on the alternative motion for remittitur or new trial until the pla notifies the court whether she will accept the remittitur. Signed by Judge Robert L Miller, Jr on 3/9/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
EMILY HERX,
Plaintiff
vs.
DIOCESE OF FORT WAYNESOUTH BEND, INC.,
Defendant

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CAUSE NO. 1:12-CV-122 RLM

OPINION AND ORDER
A jury found that the Diocese of Fort Wayne-South Bend refused to renew
Emily Herx’s contract as an elementary school teacher because of her sex, and
awarded her $1.95 million in compensatory damages and $1 in punitive damages.
Because of the statutory cap on certain compensatory damages in Title VII suits,
42 U.S.C. § 1981a(b)(3)(D), the court reduced the compensatory damages award
to $545,803. The Diocese seeks judgment as a matter of law, Fed. R. Civ. P. 50,
or remittitur or a new trial under Federal Rule of Civil Procedure 59. For the
reasons that follow, the court conditionally grants the motion for remittitur, defers
ruling on the motion for new trial, and denies the motion for judgment as a matter
of law.

I.
Mrs. Herx and her husband had struggled to have a second child. Her
doctor believed in vitro fertilization offered their best (and perhaps only) chance.
Mrs. Herx underwent two rounds of in vitro treatment and notified school principal
Sandra Guffey before beginning each round. The first time, Mrs. Guffey expressed
support and prayers. The Diocese renewed Mrs. Herx’s year-to-year teaching
contract after that. Mrs. Guffey learned of the second round of treatment when
Mrs. Herx notified the attendance officer that she would be taking sick days to
undergo the treatment; the attendance officer forward Mrs. Herx’s email to Mrs.
Guffey because Mrs. Herx had no more sick days to take.
Whether because Mrs. Guffey read this email more closely than she had
those that came before or because she had a better understanding of church
teachings (evidence in the record would support either), Mrs. Guffey realized at
this point that Mrs. Herx was announcing an intention to do something the
church views as gravely immoral. The tenets of the Roman Catholic Church
considers in vitro fertilization to violate the Fifth Commandment (”Thou shalt not
kill”) because the procedure involves (or can involve) the freezing and discarding
of embryos.
Mrs. Herx’s teaching contract had what the parties call a “morals clause”
that requires employees to comport themselves according to the teachings of the
church. Mrs. Guffey informed Monsignor John Kuzmich about Mrs. Herx’s plans
for in vitro fertilization. Msgr. Kuzmich summoned Mrs. Herx to meet with him and
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told her in vitro fertilization was a sin. This was news to Mrs. Herx, who didn’t
think Msgr. Kuzmich fully understood the process she was undergoing. She tried
to explain to him that no embryos were being destroyed; he said he would have
to research further because he understood that embryos always were destroyed.
Mrs. Herx was so close to a part of the procedure that she thought it was
medically impossible to stop, so she didn’t agree to stop the process. Mrs. Herx
thought she had Mrs. Guffey’s prior approval, so she displayed no remorse to
Msgr. Kuzmich.
After conferring with other leading clergy in the Diocese, Msgr. Kuzmich
directed Mrs. Guffey to notify Mrs. Herx that her teaching contract wouldn’t be
renewed for the 2011-2012 school year. Things got really ugly after that, but this
is enough background for discussion of the Diocese’s motion.

II
Rule 50(b) allows a judge to set aside a jury verdict only if no reasonable
basis exists in the record to support the verdict. Venson v. Altamirano, 749 F.3d
641, 646 (7th Cir. 2014). The Diocese argues that the record contains too little
evidence to allow a finding that Mrs. Herx was non-renewed because she is female
or because she was trying to become pregnant.

A

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Some of the Diocese’s argument is evidentiary. During trial, the court
allowed testimony from Michael Bradley, who had gone to a strip club with other
men to celebrate his birthday when he worked at the school as a teacher. Mr.
Bradley testified that when his conduct came to the attention of school officials,
he was sent to meet with Monsignor Kuzmich. But Msgr. Kuzmich didn’t show up;
he instead sent Father Gaughan. The discussion about the wrongfulness of his
conduct quickly shifted to a discussion of the upcoming Cubs’ season. Mr. Bradley
testified that he wasn’t disciplined, no one ever reviewed the morals clause with
him or asked whether he had complied with it before his contract was renewed,
he didn’t promise not to do it again, and the only remorse he showed was telling
Father Gaughan that he was sorry someone had had to meet with him. The
Diocese argues that Mr. Bradley (and other men from the school who accompanied
him to the strip club)were too dissimilar to Mrs. Herx and her conduct.
The Diocese’s argument conflates what a Title VII plaintiff must do to defeat
a summary judgment motion and what evidence might be admissible at a Title VII
trial. To defeat a summary judgment motion, a Title VII plaintiff proceeding under
the indirect method of proof must come forth with enough evidence to allow a
finding that others not in the protected class were treated more favorably than the
plaintiff was treated. See Gaines v. K-Five Constr. Corp., 742 F.3d 256, 263 (7th
Cir. 2014) (“Because Gaines has not identified a suitable comparator, his indirect
theory claims were properly defeated at summary judgment.”). To make such a
showing, the plaintiff ordinarily has to be able to point to a better-treated co4

employee who is substantially similar to the plaintiff in terms of transgression,
disciplining supervisor, conduct record, and so on. See, e.g., Taylor-Novotny v.
Health Alliance Med. Plans, Inc., 772 F.3d 478, 492 (7th Cir. 2014) (summary
judgment upheld where plaintiff’s punctuality and attendance problems began in
2005 and proffered comparator’s history of tardies only started in 2010); Zayas v.
Rockford Memorial Hosp., 740 F.3d 1154, 1158 (7th Cir. 2014) (summary
judgment affirmed: “Zayas lacks evidence tending to show a similarly situated
employee, who is not Puerto Rican or under the age of 40, that engaged in
similarly unprofessional communications, and was not disciplined for it.”). The
Diocese might well be right that Mr. Bradley and his co-partiers weren’t
sufficiently similar to Mrs. Herx for this summary judgment purpose.
The Diocese’s argument falls short for two reasons.
First, Mrs. Herx didn’t need to show prima facie case-quality comparators
at the summary judgment stage because she made an adequate showing under
the direct method of proof. See Docket No. 135, at 16-19. The direct method of
proof can include circumstantial evidence, Whitfield v. International Truck and
Engine Corp., 755 F.3d 438, 443 (7th Cir. 2014) (“A plaintiff may prevail by
‘constructing a convincing mosaic of circumstantial evidence that allows a
[factfinder] to infer intentional discrimination by the decisionmaker.’”) (quoting
Phelan v. Cook County, 643 F.3d 773, 779 (7th Cir. 2006)); Harper v. Fulton
County, Ill., 748 F.3d 761, 765 (7th Cir. 2014) (“Should the plaintiff lack direct
evidence, she may also point to circumstantial evidence that allows a jury to infer
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intentional discrimination by the decision-maker.”), and doesn’t always require a
showing of better treatment of a similarly situated co-employee.
Second, once a Title VII case proceeds to trial, the indirect method of proof
— including the showing of comparators — doesn’t matter. The jury isn’t asked
to evaluate whether the plaintiff has shown the prima facie required by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), or even instructed on that test. Once
the case gets to trial, the only issue the jury decides is whether, based on all the
evidence in the case, it’s more likely than not that things would have been
different had the plaintiff not been in the protected class and everything else
remained the same.
The true issue when reviewing this grant of judgement as a matter of
law, is not whether Greene was able to jump through the McDonnell
Douglas Double Dutch, but whether she presented sufficient direct
or circumstantial evidence from which a rational jury could find that
she was discriminated against because of her gender.
Greene v. Potter, 557 F.3d 765, 769 n.1 (7th Cir. 2009). That’s what this jury was
asked to decide. See Final Jury Instruction No. 10 (Doc. 203). The similarity of
comparators simply isn’t something the plaintiff has to show at trial. Runyon v.
Applied Extrusion Technologies, Inc., 619 F.3d 735, 739 (7th Cir. 2010) (burdenshifting analysis inappropriate at Rule 50 stage).
At trial, evidence of the employer’s treatment of other employees is
admissible if the evidence is relevant — if it tends to make a fact any more or less
probable and the fact is of consequence to deciding the case, Fed. R. Evid. 401 —

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and its probative value isn’t substantially outweighed by the risk of unfair
prejudice confusing the jury or wasting time. Fed. Evid. R. 403.
Because of its dissimilarity from Mrs. Herx’s conduct, the strip club
evidence had modest probative value. But it had some probative value as the only
instance (as far as this record showed) in which a male employee’s conduct was
known to the Diocese as potentially running afoul of the “morals clause.” There
was very little risk of unfair prejudice or jury confusion: jurors can easily
understand that going to a strip club isn’t in the same league as in vitro
fertilization in the eyes of an institution that believes in vitro fertilization violates
the commandment that one shall not kill. The Diocese could, and did, present
testimony to that effect.
Nothing about the evidence of the trip to the strip club warrants a new trial.

B.
Ample evidence supports the jury’s determination that the Diocese didn’t
renew Mrs. Herx’s contract because of her sex. Officials from the Diocese testified
that a male teacher whose wife was undergoing in vitro fertilization would be fired,
but Mrs. Herx presented evidence from which the jury could have inferred the
opposite.
The Diocese provided no instruction as to how principal Guffey (or her
superiors, for that matter) were to enforce the morals clause in the teachers’
contracts. The jury could have inferred that the policy was one of indifference
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unless a transgression came to light, such as when word of the strip club visit got
around school, or when Mrs. Guffey divorced and remarried, or when a teacher
wed in a Lutheran church. At those points, the Diocese stepped in and took what
it considered the appropriate action. Otherwise, nobody asked teachers if they
were living their lives consistent with the morals clause.
Mrs. Herx rightly describes this as a “don’t ask, don’t tell” policy. When
Msgr. Kuzmich met with Mrs. Herx, he told her that their meeting wouldn’t have
been needed if she hadn’t raised the issue or talked to others about it, but since
she did so there was a possibility of scandal. In vitro fertilization treatment is
harder for a female teacher to keep quiet than it would be for a male. The female
teacher can’t teach at school when her body is needed for the treatment, so she
needs to miss work. Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008). The “don’t
ask, don’t tell” approach undercuts the testimony that a male teacher would be
dismissed if his wife underwent in vitro fertilization.
As mentioned before, things got ugly after Mrs. Herx was let go. The
Diocese’s school superintendent, Dr. Mark Meyers, noticed that the school
handbook said nothing about the morals clause or in vitro fertilization, so he
proposed an amendment to the handbook. The bishop approved the change ten
months later. The amended policy reads, “Any diocesan employee who obtains an
abortion by any means, or who participates in in vitro fertilization or any other
practice or procedure which, by design or related process, results in the unnatural
destruction of human embryos, will be denied the privilege of continuing her
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employment with the diocese, subject to an appeal to the Bishop.” That this policy
is limited to women (”her employment”) isn’t quite a smoking gun, but provides a
solid base for an inference that Mrs. Herx’s contract wouldn’t have been nonrenewed had she been male.
There was other evidence, as well. Father Mark Gurtner, a cannon lawyer
with the Diocese, testified that in the eyes of the church, contraception is just as
bad as in vitro fertilization (”gravely immoral, intrinsically evil”) and no
circumstances can justify it. Msgr. Kuzmich’s testimony that if he saw a male
teacher drop a package of condoms, he would pick the package up and return it
to the teacher, provides further support for an inference that the morals clause
isn’t enforced evenly between men and women. Evidence that neither the principal
nor the supervising Monsignor received any training in avoiding sex discrimination
in the workplace provides more support for that inference.
The evidence in this trial record could support a verdict for either side. A
reasonable jury could have accepted the testimony that a male teacher would have
been treated the same way, and found for the Diocese. But this jury drew
permissible inferences that a male teacher wouldn’t have been treated the same
way, and found for Mrs. Herx. The evidence supports that verdict.
The same evidence supports an inference that Mrs. Herx wouldn’t have been
discharged had she not been trying to become pregnant.

III
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In its motion for remittitur or a new trial, the Diocese contends that the
record contains too little evidence to support a back pay award, or to support an
award for lost health insurance benefits, or to support an award for lost tuition.
If a damages award isn’t rationally connected to the evidence, a court can order
a remittitur, if the plaintiff is willing to accept it, or a new trial if the plaintiff is
unwilling. International Fin. Servs. Corp. v. Chromas Technologies Canada, Inc.,
356 F.3d 731, 739 (7th Cir. 2004).
The jury awarded Mrs, Herx $75,000 for lost wages and benefits, and the
court increased that amount to $118,803 when addressing the statutory damages
cap. The Diocese challenges three aspects of that award.
Back Pay. The parties stipulated to the pay Mrs. Herx would have received
had she continued to teach at the school through June 2014. That back pay
totaled $88,450. Mrs. Herx testified at trial that unemployment compensation was
her only income from June 2011 to April 2012. In April 2012, she got a part-time
job with a on-line education organization, with her salary fluctuating depending
on how many students there were. She testified that, at times, her salary with the
on-line employer was half what it would have been had she still been teaching for
the Diocese. On January 1, 2014, Mrs. Herx became a full-time employee of the
on-line teaching organization, and began making about 20 percent more than she
would have made as a teacher for the Diocese.
The Diocese says the $88,450 can’t be right as a calculation of Mrs. Herx’s
lost wages. That’s what she would have lost had she been without income for the
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entire three school years between her non-renewal and trial. But she wasn’t
without income: she worked part-time from April 2012 to January 2014, and
full-time after that.
Mrs. Herx responds with an accurate statement of law: defendant bears the
burden of proving failure to mitigate damages. From this, Mrs. Herx reasons that
the Diocese can’t complain about the back pay award because the Diocese didn’t
meet its burden — indeed, never mentioned damages — at trial. That argument
misapprehends the nature of the Diocese’s argument. Failure to mitigate is the
failure to make a reasonable effort to find other employment. Lawson v.
Trowbridge, 153 F.3d 368, 377 (7th Cir. 1998) (“The doctrine is simple: ‘when a
tort victim fails to take reasonable steps to mitigate his damages, those damages
are either cut down or eliminated altogether under the principle of ‘avoidable
consequences.’”) (quoting Brooks v. Allison Div. of General Motors Corp., 874 F.2d
489, 490 (7th Cir. 1989)).
The Diocese isn’t arguing that Mrs. Herx failed to mitigate; it argues that
Mrs. Herx did mitigate her damages and so isn’t entitled to a recovery of back pay
to the extent she replaced what otherwise would have been lost income.
Mrs. Herx also argues that the Diocese’s silence at trial on the issue of
damages sandbagged her proof at trial. She says that had the Diocese given any
sign of contesting damages, she easily could have placed her tax forms into
evidence. It might not have been quite that easy had the issue arisen at trial
because Mrs. Herx’s W-2s don’t appear to have been listed as exhibits in the
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pretrial order. In any event, to not challenge evidence of damages is not to waive
the requirement that damages be limited to what the plaintiff proved. Because
Mrs. Herx had earnings during the period for which seeks back pay, an award of
the entire amount the Diocese would have paid her is excessive.
The Diocese contends that because the award is excessive, the court must
either award no damages for back pay, or grant a new trial on at least that issue.
The Diocese cites Taylor v. Philips Indus., Inc., 593 F.2d 783, 786-787 (7th Cir.
1979). The Taylor court didn’t zero out the damages; it remanded for
determination of the amount of other income that needed to be subtracted from
the plaintiff’s lost wages. It’s interesting to consider the significance of Taylor
having been decided before Title VII claims were tried by juries and the Rule 59
standard came into play. But that issue needn’t be decided.
Unlike Taylor, this record allows a calculation of the minimum Mrs. Herx
lost in back pay. She is entitled to the full amount of what she would have earned
as a teacher from the Diocese from June 2011 to the beginning of April 2012 (the
record doesn’t show what April date Mrs. Herx became an independent contractor
with the online program). That amounts to $22,516.67 ($28,950 ÷ 9 months x 7
months). She isn’t entitled to anything after January 1, 2014 when she became
a full time employee and her income exceeded what the Diocese would have paid
her. So for the 2013-2014 school year, she lost no more than $10,050.00 ($30,150
÷ 9 months x 3 months in 2013).

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The record shows that while Mrs. Herx worked part-time as an independent
contractor, there were times — the record doesn’t say when or how often — that
her pay was as much as half of what she would have made at the school. The
difference between what Mrs. Herx made and what she should have made can’t
be calculated precisely, but there is no evidence that her non-Diocese earnings
were ever more than half her Diocese pay until she went full-time with the online
organization in January 2014. So this record supports the proposition that Mrs.
Herx lost at least half the pay she would have made between becoming an
independent contract in April 2012 and going full-time in January 2014. The
evidence, then, supports a back pay award with the following components:
2011-2012 school year: 2 months = 6,433.33 ÷ 2 = $3,216.66
2012-2013 school year: full year = 29,350 ÷ 2 = $14,675.00
2013-2014 school year: 3 months = $10,050 ÷ 2 = $5,025.00
In all likelihood, there were months when Mrs. Herx made less than half of what
she would have made with the Diocese, but this record doesn’t allow that
calculation. The record supports a back pay award of $22,916.66.
Lost Benefits. The jury’s lost wages and benefits award included $22,853
due to the loss of the Diocesan health insurance as Mrs. Herx’s primary health
insurance. The Diocese says there is no evidence to support that award.
The Diocese is mistaken. Mrs. Herx’s husband Brian calculated that figure
and explained how he did it. He and Mrs. Herx both had health insurance through
their employers, and his policy served as a backup for what Mrs. Herx’s policy
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didn’t cover. Mr. Herx, who is an accountant, testified that he had gone over the
family finance records and located out-of-pocket payments of medical expenses
for Mrs. Herx that health insurance would have covered when the couple had two
insurers. Mr. Herx also testified that those out-of-pocket expenses were above and
beyond the medical care that flowed from the non-renewal of the teaching contract
(another category of damages covered those).
A jury presented with cross-examination or argument might have wanted
something more than Mr. Herx’s say-so, but the law didn’t compel more. The jury
credited Mr. Herx’s testimony, and his testimony provides ample support for the
lost benefits award of $22,853.
Tuition Benefits for Son. Part of Mrs. Herx’s compensation for teaching for
the Diocese was tuition for her son. Mrs. Herx’s son was in kindergarten at the
school when her employment ended, and she moved her son to a public school.
The jury awarded $7,000 for lost tuitions benefits, consisting of two-and-a-half
years of tuition at $3,000 a year. The Diocese says Mrs. Herx suffered no damages
of this sort, and has presented two arguments. Neither argument is the slightest
bit persuasive.
First, the Diocese says, Mrs. Herx wasn’t asked to take her son out of its
school; she and her husband made that choice on their own. But Mrs. Herx
doesn’t claim damages for her son’s inability to attend the Diocese school. She
claims damages because free tuition was part of her compensation as a teacher;

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once she was no longer a teacher, she could no longer get free tuition for her
elementary school-aged son.
Second, the Diocese says, Mrs. Herx mitigated the damage by placing her
son in a public school. This argument, too, badly misses the mark: Mrs. Herx
doesn’t claim the Diocese robbed her son of the ability to get an education. As long
as Mrs. Herx worked at the school and had an elementary school-aged child, Mrs.
Herx had a right to send her son, without additional cost to her, to a school for
which the Diocese charged $3,000 a year in tuition. By deciding not to renew her
contract because of her sex, the Diocese took that right — a right worth $3,000
a year — from Mrs. Herx.
The record supports a lost benefits award of $7,000 to reflect the loss of the
tuition benefit.

IV
As it stands, the jury award (as modified by the January 12, 2015 ruling on
the motion to enforce the statutory cap) is $418,803, consisting of $299,999 in
compensatory damages, $1 in punitive damages, $88,450 for back pay, $7,500 for
lost tuition, and $22,853 for lost health insurance benefits. That award is
excessive because it includes a back pay component that isn’t supported by the
evidence. A remittitur to $22,916.66 for the back pay component, producing a
total award of $353,269.66, will keep the award within the range supported by the

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evidence. If the plaintiff doesn’t agree to the remittitur, the court will grant a new
trial limited to the amount of damages to be awarded for back pay.
Accordingly, the court DENIES the defendant’s renewed motion for
judgment as a matter of law and DEFERS ruling on the alternative motion for
remittitur or new trial [docket # 218] until the plaintiff notifies the court whether
she will accept the remittitur.
SO ORDERED.
ENTERED:

March 9, 2015
/s/ Robert L. Miller, Jr.
Robert L. Miller, Jr., Judge
United States District Court

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